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  • VKP Advises Confidence and Guarantee Insurance Company on Change in Shareholding Structure

    VKP Advises Confidence and Guarantee Insurance Company on Change in Shareholding Structure

    Vasil Kisil & Partners (VKP) has provided legal support to the Confidence and Guarantee insurance company on its compliance with newly enacted statutory requirements on licensing and on the possibility of appealing a previous license revocation decision made by the National Commission for Regulation of Financial Services Markets.

    According to VKP, in March 2016, Confidence and Guarantee withdrew from the Russian Standard Bank Group (RF), allowing it to comply with new requirements introduced about a year pursuant to Ukraine’s “On Licensing Types of Business Activity” law, which prevents residents of states that “commit military aggression” against Ukraine from exercising control over the activities of Ukrainian licensees. The company’s withdrawal from RF also allowed it to retain its insurance license and successfully appeal a license revocation decision previously adopted by the National Commission for Regulation of Financial Services Markets. 

    The firm’s lawyers assisted in the application for and Commission approval of the acquisition by a new shareholder of a substantial interest in the insurance company. The firm also drafted mandatory notifications to the National Securities and Stock Market Commission, as well as other share transfer-associated documents, such as documents relating to acquisition of a substantial shareholding, a waiver of preemptive rights, documents relating to disclosure of special information, among others.

    The project was led by Vasil Kisil & Partners Associates Roman Riabenko and Mykola Boichuk, working under the supervision of Partner Alexander Borodkin.

  • CHSH Advises Vienna International Airport on Increase of Stake in Airport Malta

    CHSH Advises Vienna International Airport on Increase of Stake in Airport Malta

    The M&A team of CHSH Cerha Hempel Spiegelfeld Hlawati has advised Flughafen Wien AG (Vienna International Airport, or “VIE”) in the acquisition of SNC-Lavalin Group Inc.’s indirect stake in Malta International Airport plc (“Airport Malta”). SNC-Lavalin was advised by Norton Rose Fulbright Canada as Canadian legal counsel and Galea Salomone & Associates as Maltese legal counsel on the deal, which closed on March 30, 2016.

    The total value of the transaction amounts to approximately EUR 64 million, equivalent to EUR 3.00 per Airport Malta share, subject to working capital adjustments.

    Malta Airport is operated by Malta International Airport plc, which is registered in Malta. Its shares — 20% of which are held by the Government of Malta — are listed on the Malta Stock Exchange. The airport handled over 4.6 million passengers in 2015.

    Founded in 1911 and listed on the Toronto Stock Exchange, SNC-Lavalin Group Inc. is one of the leading engineering and construction groups in the world and a major player in the ownership of infrastructure with offices in over 50 countries.

    Vienna Airport, Austria’s largest airport, handled 22.8 million passengers in 2015. Listed on the Vienna Stock Exchange, the company generated revenues of EUR 630.2 million in 2014. In addition to its holding in Airport Malta, Vienna Airport also holds 66% of Kosice Airport in Slovakia. The airport site has over 230 companies with 20,000 employees, including approximately 4,400 employees just at Flughafen Wien AG, making it one of the largest employers in Eastern Austria. 

    Before the transaction, VIE indirectly held a consolidated 32.94% participation in Airport Malta. SNC-Lavalin Group Inc. indirectly held 15.5% in Airport Malta and was VIE’s consortium partner. The total consolidated holding of VIE in Airport Malta after closing of the transaction is now more than 48%.

    CHSH acted as lead counsel to VIE in the cross-border transaction, which, according to the firm, “involved multi-layer holding structures in various jurisdictions (Malta, Austria, Canada), as well as a number of complex legal issues (ranging from public procurement, takeover laws, competition laws to contract law).” CHSH regularly advises VIE and was previously involved in the acquisition of VIE’s participation in Kosice Airport and regarding the privatisation of the Airport Malta.

    The CHSH team was led by Partners Johannes Aehrenthal and Georg Konrad, along with Partners Thomas Trettnak and Bernhard Kofler-Senoner, Attorney Michael Mayer, and Associate Jakob Hartig.

    The Norton Rose Fulbright Canada team advising SNC-Lavalin consisted of Partners Eric Stevens and Derek Chiasson and Associates Michelle Felsky, Emil Vanjaka, and Antoine Desroches. The Galea Salomone & Associates team in Malta was led by Arthur Galea Salomone. 

  • Integrites Announces New Managing Partner

    Integrites Announces New Managing Partner

    Integrites has announced that, at the firm’s March 31, 2016 Partners’ meeting Oleksiy Feliv was elected as Managing Partner of the firm’s Kyiv office.

    Feliv joined Integrites in October 2015 as a Real Estate Partner and Head of the EU Desk. Prior to joining Integrites, Feliv was a Partner and headed the Real Estate practice at Gide Loyrette Nouel and Beiten Burkhardt. As Managing Partner at Integrites, Feliv will be responsible for general management of the Kiev office, as well as for the firm’s structural development and further strategic growth. He also remains the head of the Real Estate Practice and EU Desk of Integrites and will continue to develop the European direction of the firm. 

    Integrites Senior Partners Ruslan Bernatsky and Vyacheslav Korchev will focus on further development of Integrites’ offices in other countries and new areas of the firm’s activities in the international market. 

    Speaking about the firm’s new Managing Partner, Ruslan Bernatsky said: “The rapid development of the company calls for new strategic decisions, one of which was the election of Oleksiy Feliv as a new Managing Partner by the Board of the Partners. We are very confident that this positive step will strengthen our position in the Ukrainian market and will open new opportunities for the firm’s development.”

    Feliv, unsurprisingly, was pleased about his election: “I am honored to become a Managing Partner of Integrites Kyiv office. Having received from Partners a unanimous mandate, I plan to focus on further development and strengthening of the market position of Integrites, as well as engaging new partners who share our vision of new business opportunities, despite the current economic and political situation in the country.”

  • Gide and Brandford Griffith Advise on Sale of Polish Wind Farm Portfolio by Eolfi to Quadran

    Gide and Brandford Griffith Advise on Sale of Polish Wind Farm Portfolio by Eolfi to Quadran

    Gide has advised the Eolfi group on the sale of a wind farm portfolio to Quadran. Quadran was advised by France’s Brandford Griffith law firm, with support in Poland from DMS DeBenedetti Majewski Szczesniak.

    Eolfi operates in the wind and solar energy sectors and has been present in Poland since 2007. It has developed 24 wind farm projects, with a total capacity of 980MW across various parts of the country, including Lower Silesia, Wielkopolska, Lublin, and Podlasie.

    Quadran has been present in Poland since the middle of last year, when it acquired Juwi Energia and its wind farm projects. It now operates as Quadran Polska. The transaction enables the company to add four wind farm development projects to its Polish operations, with a capacity exceeding 170 MW.

    The Gide team representing Eolfi on the transaction was led by Partner Hugues Moreau and included Energy Counsel Konrad Kosicki and Corporate Associates Olga Czyzycka and Zuzanna Machowska.

    The Brandford Griffith team consisted of Partner Jerome Brosset and Senior Associate Julien Detis.

    DMS DeBenedetti Majewski Szczesniak did not reply to our inquiries on the matter. 

  • Slovenia Reforms Public Procurement System

    Slovenia Reforms Public Procurement System

    The new Slovenian Public Procurement Act, the ZJN-3 (“Procurement Act”), enters into force on 1 April 2016. After a long period of dual regulation of the general and utility areas of public procurement, the new Procurement Act unifies both areas in a single act, thus invalidating the existing Public Procurement Act – ZJN-2, and the Act Regulating Public Procurement in Water, Energy, Transport and Postal Services – ZJNVETPS. All public procurement procedures which commenced before 1 April 2016 will be concluded in accordance with the previously valid acts.  

    Enhancing Transparency and Simplifying Procedures

    The main reason behind the adoption of the new Procurement Act is the implementation of Directive 2014/24/EU and Directive 2014/25/EU which are reforming the public procurement system at a European level. With the new directives and their implementation in national legal systems, legislators are pursuing greater transparency, limitation of corruption, promotion of innovative solutions and participation of small and medium enterprises, as well as promotion of green public procurements. The ambit of the European legislator was mainly to achieve greater flexibility of the procedures and to simplify complex procedures, as well as to open national markets to foreign enterprises. One of the best possibilities for achieving this is the gradual introduction of electronic public procurement.

    The Slovenian legislator has commenced the reform systematically and has executed a thorough analysis of the public procurement market in Slovenia. The most important implications, which also facilitate comparison between different EU member states, are that a) the average duration of the most commonly used procurement procedure – i.e. open procedure – is 202,8 days, b) the most common reason for the unsuccessful completion of a procedure, which happens in 78,76% of  cases, is the incomplete tender submission, and c) that the contractual value of all awarded contracts, without VAT, was almost EUR three billion. In comparison to previous years an uptrend of volume in procurement value has been noticed.

    New Legislative Solutions

    The most important new legislative solutions offer a simplified procedure for the contracting authorities due to several new procedures that are now available, improving the thresholds for small value procurements and shortening the deadlines for the submission of tenders. Simplifications were also sought for tenderers. From now on, tenderers will be able to use a single European form for establishing grounds for exclusion, i.e. ESPD. The maximum yearly turnover which may be requested by the contracting authority is also limited, which will probably enhance competition in the relevant markets.

    On the other hand, the Procurement Act provides for several new grounds for exclusion with special emphasis on social procurements via social clauses, and gives absolute priority to certain tenderers in reserved contracting cases. To facilitate transparency, the publication of some recording contracts – those contracts that are below the threshold for public procurement – is now mandatory. Contract award decisions will also be published.

    The new Procurement Act further invokes the most economically advantageous tender criterion, which is based on lifetime costs and price. However, this does not mean (except in some cases) that the criteria cannot solely take into account the lowest price, but it does put a priority emphasis on the relationship between price and quality. Another important change is in relation to mandatory direct payments to subcontractors, as well as additionally flexible regulation of utilities, which relate water, energy, transport and the postal sector.

    Fundamental Concepts and Principles

    The new Procurement Act departs from the existing definition of an ‘incomplete tender’, and rather defines an ‘admissible tender’. An admissible tender eliminates grounds for exclusion, fulfils all relevant conditions, and is technically appropriate and timely. It is also absent of proven cartel agreements and corruption and offers prices that are not abnormally low or exceeding the guaranteed funds. It is evident that emphasis has been put on the prohibition of anticompetitive practices, which will be determined in a specific procedure before the Slovenian Competition Protection Agency, if the contracting authority has any suspicions.

    The new Procurement Act also abandons the concept of a formally incomplete tender, which in practice enabled wide supplementing of a submitted tender. The only remaining concept will be the allowed supplementing and changing of the tenders, which is under contracting authority’s control, since the contracting authority itself may request a supplement, correction, change or clarification of the tender. The definition of issues which may be supplemented and/or changed is narrower than it was in the previous act.

    Even though the fundamental principles remain practically the same, the new Procurement Act did widen the social clause which provides that the tenderers have to fulfil all applicable obligations in respect to environmental, social and employment law. In practical implementation this means that the wider clause will be an essential element of each contract, meaning that rescission of contract will be possible only upon a breach of the clause. Non-compliance with the social clause also presents grounds for exclusion. Furthermore, tenderers will have to provide evidence of regular payment of tax obligations and social contributions with the relevant national tax forms.

    Thresholds for Public Procurements

    The new Procurement Act shall be applied to those procurements where the estimated value, without VAT, is equal or higher than the following values:

    • 20.000 EUR for public supply and service contracts (50.000 EUR for utility);
    • 40.000 EUR for construction contracts (100.000 EUR for utility);
    • 750.000 EUR for social and other specific services contracts (1.000.000 EUR for utility).

    Public contracts that exceed the above-mentioned thresholds, will necessitate the publication of a contract notice on the national public procurement portal. If the contract value exceeds European thresholds, which are relatively higher than national ones, publication in the Supplement of the Official Journal of the EU is also mandatory.

    For public contracts where the estimated value is lower than the respective threshold (i.e. recording contracts), the only obligation of the contracting authority is to observe the principles of economy, efficiency, effectiveness and transparency. In cases where the recording contract value exceeds EUR 10,000 without VAT, the contracting authority is also obliged to publish a list of all such contracts concluded in the previous year.

    The new Procurement Act also defines several exceptions where the Procurement Act will not be used. In general, the exceptions relate to urgent contracts, specific legal and financial services, in-house contracts and public-public relationships, in accordance with ECJ case law.

    New Old Procedures

    The most commonly used procedure in practice, i.e. the open procedure, has not been significantly changed. The most relevant change mainly applies to shorter minimum deadlines for the submission of tenders, which is now 35 days, except in exceptional circumstances where the deadline may be shortened to 15 days.

    Even though the restricted procedure is – in terms of terminology – a new procedure, it is basically the same as the previously existing procedure with a prior establishment of competence. The Procurement Act provides for several other procedures such as competitive dialogue, competitive procedure with negotiations, negotiated procedure with prior publication of a contract notice, negotiated procedure without prior publication of a contract notice and a new procedure for small value contracts.

    Changes in the Execution of the Procedure

    The new Procurement Act eases the preparatory stage of the public procurement procedure by enabling prior cooperation with candidates or tenderers. In such cases the contracting authority has to take certain steps in order to prevent anticompetitive practices.

    In the decision stage of the procedure, an important new change is that when a decision is published on the national web portal for public procurement, it is deemed served to all tenderers. In practice this means that service for all tenderers will be unified, which will impact the deadlines for the filing a review claim. In addition, the Procurement Act does not provide for requests for additional explanations anymore, meaning that deadline extension for filing a review claim on this basis will no longer be possible.

    The tender review process, where other tenderers review competing tenders after the decision had been made, has been vitally changed by the introduction of greater restrictions to the potential detriment of tenderers. The review of other tenders is still possible, however, two different situations have to be distinguished. When the contracting authority performed a full check of all tenders regarding their admissibility, then the review of other tenders may be granted only to those who submitted an admissible tender. However, if the contracting authority decides to perform a full check of only the most economically advantageous tenders, then it is obliged to enable review to all tenderers who request it. The request for review has to be submitted within three working days (in procedures for small value contracts – within two working days) and the contracting authority has to facilitate the review within three working days (or two working days for small value contracts) following the receipt of the request.

    New Regime for Subcontractors

    If the tenderer intends to perform the task with subcontractors, each subcontractor and the parts they will undertake must be included in the tender. The tenderer will also have to include their contact information and legal representatives, completed ESPD forms of subcontractors, as well as the subcontractors’ request for direct payments. An important improvement is that the tenderer is required to undergo the same procedure if the subcontractor is changed during contract execution.

    In accordance with the new regime, there is no automatic mandatory direct payment to subcontractors. Such obligation will only exist if the subcontractor requests direct payment. If direct payment is not mandatory in a specific case, then the contracting authority will have to request that the tenderer submits a subcontractor’s statement of payment receipt. Such statement must be provided within 60 days from payment of the final invoice, otherwise the tenderer will be liable for a misdemeanour.

    If the contracting authority establishes, during the tender check process, that grounds for exclusion exist with a subcontractor, then the contracting authority must request from the tenderer that it submits an official change in subcontractors.

    Additional Exclusion and Selection Criteria

    The majority of exclusion and selection criteria has remained the same, however, the new Procurement Act applies different terminology to the processes and also distinguishes between mandatory and optional exclusion and selection criteria, meaning that the contracting authority may opt to consider optional criteria regardless of their inclusion in the tender documentation. Many grounds for exclusion are not necessary with regards to utility area.

    Grounds for exclusion are as follows:

    • criminal record,
    • nonfulfillment of tax conditions,
    • negative references record,
    • being twice fined for a misdemeanour related to the payment of work,
    • failing to comply with obligations relating to social clause,
    • insolvency proceedings,
    • serious professional misconduct,
    • an agreement restricting competition,
    • conflict of interest,
    • involvement in prior stages of the procedure (in some cases),
    • shortcomings in the execution of other public contracts,
    • providing serious misleading information, or
    • attempting to unduly influence the contracting authority.

    Even if certain conditions are relatively strict, the Procurement Act provides for a corrective mechanism where the tenderer has an option to provide evidence that it has taken sufficient measures to ensure its reliability.

    Outlook

    It will be shown in practice whether the legislature has achieved the desired simplifications of the procedure, however, it is questionable whether this extensive reform will benefit tenderers. Changes regarding some crucial concepts and some legal vacuums which will have to be solved by the National Review Commission imply that it will not. However, it should be noted that a reform regarding legal protection in public procurement procedures is expected in late autumn 2016. In addition to this reform, both tenderers and contracting authorities will have to pay considerable attention to the fact that the legislator expects to fully introduce the system of electronic procurement by April 2017.

    By Marko Ketler, Partner, Karanovic & Nikolic

  • Lansky, Ganzger & Partner Advises Gebruder Weiss on Entry into Kazakhstan

    Lansky, Ganzger & Partner Advises Gebruder Weiss on Entry into Kazakhstan

    Lansky Ganzger & Partner (LGP) has advised the international Gebruder Weiss transport and logistics company on the acquisition of two Almaty-based subsidiaries of the German shipping company, Brockmuller, located in Almaty, Kazakhstan.

    The acquisition by Gebruder Weiss — which achieved annual sales in 2015 of around EUR 1.28 billion and has 6000 employees at 150 locations — was effected through the purchase of the Kazakh parent company. According to LGP, “the acquisition involved multiple jurisdictions and a number of special legal issues that had to be assessed specifically with consideration to Kazakh law (such as the transfer pricing aspects). 

    “Thus far, a handful of Austrian companies have ventured into Kazakhstan,” said LGP Partner Ronald Frankl, who oversaw the firm’s team on the deal. “With the acquisition of Brockmuller’s Kazakh subsidiaries, a long-established Austrian company has now tapped into a strategically important market on the Silk Road. Drawing on our CIS expertise, Gebruder Weiss is taking advantage of the increasingly investor-friendly climate in Kazakhstan and the fact that since 2014, international companies have been able to settle there without needing local partnerships. 

    “Besides its market potential, Kazakhstan plays an important role as a link between Europe, the CIS region and China. We are therefore pleased that we were able to offer our combination of infrastructure and project management experience, legal expertise and local presence in assisting a long-established Austrian company with its operations in the region,” said LGP founder, Gabriel Lansky.

    In addition to Frankl, the LGP team working on the acquisition consisted of Vienna-based Associate Viktoria Jevtic and Senior Legal Counsel Robert Salfenauer and Kazakhstan-based Legal Counsels Ainur Kuandykova and Denis Alexa.

  • Bulboaca & Asociatii Brings in Adriana Stoian as New Partner

    Bulboaca & Asociatii Brings in Adriana Stoian as New Partner

    Bulboaca & Asociatii has brought in Adriana Stoian as Tax Partner to lead Bulboaca & Asociatii Tax, an entity operating as an affiliate of the law firm since 2013.

    Stoian, who has more than 16 years of experience in tax consultancy, has overseen what Bulboaca & Asociatii refers to as “an impressive number of M&A, group restructuring, business reorganization and fiscal audit projects.” Before joining Bulboaca & Asociatii she worked for the past three years as the Tax Director of Transfer Pricing Services, and for the two and a half years before that as Tax Manager with Rompetrol. She also spent ten years as a Tax Manager with PricewaterhouseCoopers in Romania for 10 years. She graduated from the Academy of Economic Studies in Bucharest in 1997, with a specialization in Accounting. 

    “I am happy to be joining the Bulboaca & Asociatii squad,” said Stoian. “The innovating concept of the Bulboaca & Asociatii business strategy has convinced me to join the firm and contribute to the mission the firm has undertaken – that of using our professional activity to create something noble. I feel we can build together for the future, by offering our clients all the tools they need: legal and tax services integrated in complex M&A, de-merger and reorganisation or group restructuring projects, including tax consultancy services covering all sectors, such as profit tax, VAT, revenue tax and social security, local taxes and fees etc.”

  • Cobalt Advises Geco Investicijos on Merger Clearance for Danpower Baltic Acquisition of Marivas

    Cobalt Advises Geco Investicijos on Merger Clearance for Danpower Baltic Acquisition of Marivas

    Cobalt’s Vilnius office has advised Geco Investicijos on the merger clearance procedure related to the acquisition by Danpower Baltic UAB — a joint venture owned by Geco Investicijos and Danpower GmbH — of Marivas UAB, the operator of three biomass heating plants in Vilnius and Kaunas, Lithuania. Roedl advised Danpower GmbH on the merger clearance application.

    Danpower Baltic constructs and operates a biomass CHP plant and generates electricity. The company, which was founded in 2014 and is based in Kaunas, Lithuania, acquired Marivas from the Netherland-based Green Environment Fund I for an undisclosed amount. Marivas controls two biomass heating plants in Vilnius – a 45.8- MW facility and a 23.8-MW facility — with a third biomass plant (a 48-5-MW unit) in Kaunas. Marivas operates its plants via two subsidiary companies, with one operating the plants in Vilnius, and the other operating the plant in Kaunas.  

    The Cobalt team advising Geco Investicijos was led by Partner Elijus Burgis.

    Editor’s Note: The original version of this article identified Cobalt’s client in the matter as Danpower Baltic UAB, rather than Geco Investicijos. That version was based on a story on Cobalt’s website, and the report above has been corrected following a message by Cobalt to CEE Legal Matters explaining that its original statement was in error. We apologize for any confusion.

     

  • A&O Promotes Dvorkin to Partner in Moscow

    A&O Promotes Dvorkin to Partner in Moscow

    Allen & Overy has announced that Counsel Ilya Dvorkin, in the firm’s Moscow office, will be promoted to Partner on May 1, 2016. Dvorkin is the only lawyer from CEE among the 21 lawyers promoted to Partner Allen & Overy worldwide in its global promotion round announced on April 8, 2016.

    Dvorkin, who joined A&O’s Moscow office in 2008, leads the firm’s Aircraft Finance practice in Russia. He previously spent 18 months in Allen & Overy’s London office as a member of the Structured and Asset Finance team, where he acted for major lessors and financial institutions on complex cross-border asset finance transactions. In Moscow, Dvorkin specializes in aircraft financing matters, including pre-delivery payment financings, ECA financings, portfolio sales and leasing, as well as related Russian tax, customs, and regulatory issues.  

    According to Allen & Overy, he was “the first lawyer to successfully lead the repossession of aircraft from Russia on behalf of an international lessor. Among other [deals], he advised leading international lessors on the KrasAir, KD Avia, Aeroflot Cargo cases. He also represented major aircraft lessors and banks on their restructurings, aviation related disputes and on airline bankruptcy cases in Russia.” The Allen & Overy website reports that he works “very closely with Aeroflot – Russian Airlines, VEB-Leasing, VTB-Leasing, State Transport Leasing Company, Ilyushin Finance Co., GECAS, AerCap, Willis Lease Finance Corporation and other major market players on the Russian aircraft finance market.” Earlier this year he prepared a formal legal opinion that was relied upon by Aurora in its lease of three Airbus A319 aircraft from AviaAM Leasing (as reported by CEE Legal Matters on February 19, 2016 http://ceelegalmatters.com/index.php/over-the-wire/legal-ticker-deals-and-cases-in-cee/2-legal-ticker-deals-and-cases/4132-sulija-partners-advises-on-acquisition-and-lease-of-four-airbus-planes-with-a-o-providing-legal-opinion). 

    Dvorkin received his degree in law from the Ulyanovsk State University in 2003.

    Commenting on the 21 lawyers who will join the A&O partnership on May 1, 2016, Allen & Overy Managing Partner Wim Dejonghe said: “These promotions represent another significant investment in the quality of our international network and the future of our business. The broad spread of locations also underlines the demand we anticipate from clients across our network. It gives me great pleasure to welcome each of the candidates to the partnership and I would like to congratulate them on reaching this milestone in their career.”

  • Hedman Partners Offers Support to ClimateLaunchPad Competition in Tallinn

    Hedman Partners Offers Support to ClimateLaunchPad Competition in Tallinn

    Hedman Partners is supporting ClimateLaunchPad, which the firm describes as “the largest green-tech pitching competition finals in Europe,” and which will be held this October in Tallinn.

    According to Hedman Partners, Climate Launchpad, which will involve over 80 green-tech startups from 25 countries, and the cause it represents, “tie in well with the law firm’s expertise in advising prominent startup enterprises and investors.” According to Hedman Partners’ Managing Partner Merlin Salvik, green topics are becoming more and more relevant today and this gives reason to hope and believe that Estonia could be the hotbed for success stories in green-tech. “We want to help those future unicorns with our unique set of skills and know-how,” notes Salvik. 

    ClimateLaunchPad expects both individuals and teams to participate in the pitching, but also companies in their pre-seed and startup phases (less than 2 years old) with ideas for dealing with climate change or other environmental issues. 

    Hedman Partners will reward the top 3 local teams with 1500 EUR worth of legal assistance.