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Four Counsel in Dentons’ Czech Republic and Poland offices have been promoted to Partner in the firm’s recent global promotion round.

In Prague, Daniel Hurych, the Co-head of Dentons’ Banking & Finance Group, joined the firm’s partnership. According to Dentons, Hurych “advises leading domestic and European banks on financing transactions in the Czech Republic and CEE.  He is experienced in acquisition finance and real estate finance, corporate law and business contracts law.” Hurych joined Dentons in 2010 from Clifford Chance, where he worked for 12 years. Hurych graduated summa cum laude as a Master of Laws from the Law Faculty of Charles University in 1997, received an LL.M. degree in International Business Law at the Central European University in Budapest in 2000, and received a second LL.M. degree in International Comparative Law at the Penn State University Dickinson School of Law in the United States in 2003.

In Warsaw, Aleksandra Minkowicz-Flanek, Tomasz Janas, and Michal Jochemczak joined the partnership.

Minkowicz-Flanek is the Head of the Labor and Employment practice team in Dentons’ Warsaw office, where she specializes in labor and employment law and on corporate issues. According to Dentons, “she has broad experience of individual and collective labor law issues, employment restructuring, collective dismissals, remuneration in the banking sector and employment-related aspects of corporate transactions,” and “she has an extensive background servicing clients in the banking, food processing, automotive and advanced technology sectors.” Minkowicz-Flanek began her legal career after graduating from the University of Warsaw in 1999 as an Associate with Hunton & Williams, and joined Salans in 2001. In 2009 she joined Pricewaterhouse Coopers Legal as Counsel, but in 2012 she returned to Salans, and was there when the firm merged and reformed into Dentons in 2013. 

Janas is member of the Energy and Natural Resources practice team in Warsaw. According to Dentons, “Tomasz has over ten years’ experience providing legal advice on infrastructure projects, including in the energy sector (relating to conventional and renewable energy),” and “he concentrates primarily on regulatory issues, M&A, privatization and selected aspects of financing energy projects.” After graduating from the University of Lodz in 2001 he joined Salans in February of 2002, then moved to Gide Loyrette Nouel in 2005. After two years with Gide he moved to Clifford Chance, where he stayed for six years before moving back to Salans — now part of Dentons — as a Counsel in October 2013.

Jochemczak heads the Arbitration practice in Warsaw. He specializes in complex arbitration and litigation and has represented clients in high profile domestic and international arbitration cases. According to Dentons, he “has acted as counsel in numerous international joint-venture, M&A, real estate, construction, corporate, and financial services disputes,” and “he advises clients on international civil law and has significant experience in the fields of jurisdiction, enforcement of judgments and conflict of laws.” The firm reports that he “also provides legal advice to creditors, management and shareholders in bankruptcy and insolvency proceedings.” He graduated from the Adam Mickiewicz University in Poznan in 2004 and joined then-Salans in 2005.

Binder Groesswang has advised CPB Software AG on its merger with Bavaria Banken Software GmbH. The merger involves two successful international IT service providers whose main clients are banks, financial services providers, and government authorities and service providers.

According to a Binder Groesswang announcement, “the two companies took this step with the objective of sustainably consolidating their common position as leading providers of IT services for banks and government authorities: CPB Software AG is a partner for the manufacture, support and further development of complete IT solutions for banks, including bank front-end and e-banking software, as well as project work for government agencies and service providers, and for other areas, such as traffic telematics. The company operates two data centres in Vienna and offers a comprehensive range of processing facilities for banks. Bavaria Banken Software GmbH provides a standardized, complete banking system suitable for use worldwide, which it has developed in cooperation with renowned banks. The system’s practical relevance stems in no small part from the company’s longstanding experience in important financial markets such as London, Vienna, New York, Frankfurt, Malta and Zurich. The CPB Software group, expanded to include Bavaria Banken Software GmbH, now employs 190 persons and has gained an additional office in Munich. (Previously the company had three locations, two in Vienna and one in Miltenberg, near Frankfurt).”

The merger was enacted under corporate law by incorporating Bavaria Banken Software GmbH into CPB Software AG. Approximately 73% of CPB Software AG is now owned by the management board members, almost 13% by the managing directors of the German and Austrian companies, and the rest by 13 employees.

A new corporate identity for the company, including a new name and fresh corporate design, is currently in preparation.

The signing and the extraordinary general meeting on the non-cash capital increase took place on December 10 2015.

The Binder Groesswang team was led by Partners Markus Uitz and Thomas Schirmer, and included Associate Michael Delitz.

Binder Groesswang did not respond to our inquiry about the identity of counsel for Bavaria Banken Software.

Aequo has secured what it calls “an extremely important victory” in the Superior Commercial Court of Ukraine for Dr. Reddy’s Laboratories Limited in, according to the firm, “a first of a kind case involving biosimilar medicinal product registered in Ukraine.”

The claim of patent infringement was brought by the U.S.-based Genentech Inc.  Aequo reports that the courts of lower instances applied the same approach to the biosimilar product – Reditux — as they did to generics previously. As a result, the Commercial Court of the city of Kyiv granted a preliminary injunction against the biosimilar product of our client. The ruling of the first instance court was confirmed by the appellate court. In its cassation appeal, Aequo reports, “Dr. Reddy’s demonstrated that a completely new approach should be applied to hi-technology biosimilar products distinguishing them from generics while considering a patent infringement matter.”

On January 26, 2016 the Superior Commercial Court of Ukraine satisfied Dr. Reddy’s cassation appeal and cancelled the preliminary injunction in full. 

The Aequo team was led by Partner Oleksandr Mamunya, assisted by Attorneys-at-law Nataliya Dryuk and Anton Kapitonenko and Patent Attorney Nataliia Kushnir.

Baker & McKenzie has advised Swiss-founded Selecta Group in the sale of its operations in the Czech Republic, Hungary and Slovakia to the KMV Group. KSB advised the KMV Group on its acquisition. The financial terms of the transaction were not disclosed.

Selecta, a leader for vending and coffee services, currently operates in 21 European countries and serves 6 million people per day. Their turnover in 2015 was approximately EUR 725 million.

The KMV (Karlovsky Mineralni Vody) Group is Central Europe’s largest producer of mineral water.

The three businesses sold to KMV employ about 200 people and generated net sales of approximately EUR 14 million in the business year 2014/15.

The Baker & McKenzie team advising Selecta was led by Zurich Partner Alexander Fischer, who said “it was a pleasure advising Selecta on this strategic cross-border sale that will allow the company to focus on increasing market share in its core European markets.” Czech and Hungarian teams of Baker & McKenzie were led by Czech Republic-based Partner Tomas Skoumal and Budapest-based Partner Ines Radmilovic. 

KSB’s core team consisted of Partner Dagmar Dubecka and Advocates Jaroslav Mikovec and Jan Beres. This marks the third acquisition KSB has advised KMV on in the past year, following KMV’s acquisition of the Hungarian bottled water Kekkuti Asvanyviz from Nestle Waters (as reported by CEE Legal Matters on March 18, 2015), and its acquisition of Szentkiralyi Asvanyviz shortly thereafter (as reported by CEE Legal Matters on April 29, 2015).

Editor’s Note: After this story was published, CEE Legal Matters learned that a Lakatos, Koves & Partners law firm consisting of Partner Richard Lock and Counsel Pal Rahoty had worked alongside KSB in advising KMV, assisting with due diligence and local transfers under Hungarian law. Similarly, Cechova & Partners confirmed that Partners Katarina Cechova and Tomas Maretta had advised the KMV Group on the Slovak part of the acquisition, “namely in the due diligence review, transaction structuring and local transfers within Slovakia.”

Integrites has announced that dispute resolution specialist Andrey Ryabinin has joined the firm as a new Partner in its Moscow office, coming from Muranov, Chernyakov and Partners, where he chaired the bankruptcy practice. Ryabinin has more than 10 years of professional expertise in dispute resolution and international arbitration on the territory of the Russian Federation and in foreign jurisdictions, including the United Kingdom, the Netherlands, the USA, and France.

According to Integrites, “As part of Integrites’ dispute resolution team Andrey Ryabinin will continue to represent clients’ interests in strategic disputes both at the Russian and international level. He will also advise clients in cross-border insolvencies and bankruptcy administration, asset tracing and debt recovery, including pledge and mortgage enforcement and foreclosure, fraud investigation, and on enforcement of decisions and awards made by foreign courts and arbitral tribunals.”

Ryabinin graduated from the Khabravosk State Academy of Economics and Law in 2006. He began his career as a lawyer with the Rimbunan Hijau Group in Khabarovsk, in the Russian Far East, in February 2007, and joined Muranov, Chernyakov & Partners after completing his LL.M. in International Business Law at Central European University in September 2009.

Commenting on his move to Integrites, Ryabinin said: “I have been amazed by the energy and innovative approach of Integrites in all markets where they are present. I am excited to become a part of Integrites’ professional team and look forward to new opportunities for advising clients worldwide, as well as to my anticipated input into the growth of Integrites’ dispute resolution practice and the firm in general.”

Binder Groesswang has announced that Michael Kutschera and Thomas Schirmer have been re-elected the firm’s Managing Partners for another two-year period of office.

Kutschera is also assuming the function of spokesperson of the firm.

BSWW has advised PayTel S.A., an ICT company providing services in the area of mass payment processing, on it agreement with Orange Polska S.A. for the provision of payment services and other services related to settlement of cash and cashless transactions in the sale network of Orange Polska S.A. The value of the deal is estimated at approximately PLN 31 million.

According to BSWW, the firm’s “comprehensive advisory services included, i.a., devising a transaction structure, participation in negotiations, amending the agreement and support in preparing documents, amendments, and agreements related to the principal agreement.“

“PayTel S.A. is a leading provider of modern solutions in terms of processing deals related to sale of goods and services pre-paid via the Internet and settlement of cash and cashless transactions,” BSWW Partners Piotr Wojnar and Janusz Szelinski are quoted as saying in a BSWW announcement. “We are glad that we had the chance to support our long-standing client on a deal as crucial for the company as this one, which ensures long-term cooperation with the Orange capital group. We hope that as a result PayTel S.A. will strengthen its position as a payment institution dealing with money circulation in Poland.”

Genesis Private Equity Funds and Genesis Capital, one of the key players in the private equity industry in the Czech Republic and Slovakia, has hired Pavel Kvicala, previously a Partner at Havel, Holasek & Partners and before that Senior Czech Partner at Norton Rose Fullbright in Prague. Kvicala joins as Senior Counsel for Genesis private equity funds.

Kvicala became a member of Genesis Private Equity Funds’ advisory team on February 1, 2016, after working closely with Genesis since 2001 (including advising on Genesis Capital’s sale of its share in JRC Czech to Hamaga last summer (as reported by CEE Legal Matters on July 24, 2015)). His areas of expertise include complex M&A transactions, private equity, structured and acquisition finance, and cross-border legal counselling in a number of industries such as energy, telecommunications, engineering, IT and others. He joined Havel, Holasek in the spring of 2014, following the announcement that Norton Rose Fullbright would be closing its Prague office (as reported by CEE Legal Matters on April 24, 2014). He is a graduate of the Faculty of Law of Charles University in Prague and became a member of the Czech Bar in 2002. 

Genesis Capital is an advisor of private equity funds which provide capital to small and medium sized enterprises in the Czech Republic and Slovakia in order to facilitate their growth and development. Genesis Private Equity Funds have already supported over 30 companies helping many of these firms to become market leaders in their fields. In total, the Genesis Funds have provided over 2 billion Czech crowns for the development of Czech and Slovak companies.

Since its foundation in 1999, Genesis Capital has advised four private equity funds with cumulative size of over EUR 160 million, or over CZK 4 billion. Two of these funds have finished their activities and distributed funds to investors. The third Genesis Fund, which was fully invested in 2014, provided all of its capital to Czech and Slovak enterprises and is now entering its divestment stage. The recently launched Genesis Fund, GPEF III, currently has EUR 60 million, but may increase to 80 million by its final closing. Similarly to its predecessors, GPEF III will focus on investments into small and medium-sized enterprises in the Czech Republic and Slovakia. A certain part of its resources may also be allocated to investments in Austria, Hungary, and Poland.

The list of companies in the Genesis private equity funds’ portfolio currently includes Servodata, KS Klima-Service, AZ KLIMA, GTH catering, Roltechnik, Sieza, ARANEA, Swell and 3070.

According to a statement released by Genesis, “the current expansion of the Genesis Capital and Genesis Private Equity Funds’ team is directly linked to the foundation of the new Genesis Private Equity Fund III, which may have up to 80 million euros available for investments upon final closing. These funds are intended for investments in small and medium-sized enterprises in the region of Central Europe. As the Funds’ advisor, Pavel Kvicala will also provide legal support to the activities related to the Genesis Private Equity Fund II portfolio companies, the previous Fund which included investments such as Profimedia CZ, JRC Czech or Servodata. Both Funds will thus receive direct support of a leading legal expert with particular experience in the field of mergers and acquisitions and structured finance.”

“Over the last 15 years, Pavel Kvicala advised in dozens of transactions realised by the previous Genesis Funds, proving to be a highly qualified professional with deep understanding of financial and commercial nuances,” said Jan Tauber, Managing Partner at Genesis Capital. “Our closer and more focused alliance following the launch of the new GPEF III Fund becomes the next logical step in our cooperation.“ 

Pavel Kvicala also commented on his new role: “The move to private equity is a matter of natural development and it builds on my previous experience. I am genuinely looking forward to our closer cooperation as an opportunity to deliver returns to the funds’ investors, and bring growth and prosperity to small and medium enterprises and their management teams.“

Binder Groesswang has advised Greece’s Argo Group on the sale of its 100% stake in Argo Egypt to Austria’s ALPLA group. The signing took place on November 23, 2015, and closed in January 2016. The purchase price was not disclosed.

The Argo Group was founded in 1970 and is based in Athens. It has offices in Greece, Romania, and — since 2011 — in Egypt. Argo Egypt operates a factory about 30 kilometers northeast of Cairo’s center in the industrial area of El Obour. It currently employs around 50 employees.  

ALPLA is one of the leading companies in the packaging solutions industry. It employs approximately 16,000 people at 154 locations in 40 countries, providing packaging for brands in the food, beverage, cosmetics, and cleaning industries.  

The Binder Groesswang team consisted of Partners Florian Khol and Hemma Parsche.

Austrian Lawyer Rico Folie advised ALPLA on the deal.

Introduction

Law no. 347/2015 (“Law no. 347/2015”) for the approval of the Government Emergency Ordinance no. 31/2015 (“GEO no. 31/2015”) for amending and supplementing the Competition Law no. 21/1996 (“Competition Law”) and for supplementing art. 1 of Government Emergency Ordinance no. 83/2014 regarding the salary of the personnel paid from public funds in the year 2015, as well as other measures in the field of public expenses was published in the Official Journal at the end of 2015 and entered into force on 1 January 2016.

While approving GEO no. 31/2015, Law no. 347/2015 also revises provisions of Competition Law introduced or amended through GEO no. 31/2015.

According to the President of the Romanian Competition Council (“RCC”), Law no. 347/2015 represents the final review of the competition legal framework, ultimately aligning the domestic legislation with EU provisions.

The most significant amendments made by Law no. 347/2015 are summarized below.

The narrowing down of the scope of the documents covered by legal privilege

Law no. 347/2015 amended the procedure for the seizure of evidence during dawn raids. Thus, the interdiction imposed on the RCC inspectors to seize or use as evidence preparatory documents created by the investigated undertaking or association of undertakings for the exclusive purpose of exercising its right of defence (as part of the legal privilege) has been excluded.

As such, the current version of Competition Law maintains the benefit of the legal privilege only for those communications carried out between an undertaking and its lawyer exclusively made within and for the purpose of exercising the undertaking’s defence right, following the opening of the procedure or previously, subject to the condition that such communications are related to the object of the procedure.

This means that under the Competition Law the RCC inspectors will be able to seize the documents/information prepared by an undertaking for the purpose of obtaining legal advice.

This exclusion is in contrast with the provisions of the Commission’s Best Practices in proceedings concerning articles 101 and 101 TFEU, as well as the established European case-law that grants legal privilege to preparatory documents drafted for the exclusive purpose of obtaining legal advice and exercise the defence right, although such documents have not been effectively transmitted or drafted with the purpose of being physically transmitted to a lawyer.

Introduction of the interview procedure

Competition inspectors are vested with additional prerogatives that allow them to interview any individual or legal entity that consents to it. To this end, the RCC sends written request, indicating the legal ground, scope, date and the place where the interview is to be held, as well as the sanctions set forth under the Competition Law.

The interview may be performed by any means, including electronically, and will be audio-video recorded. The interview shall be also mentioned within minutes signed by all participants. However, the current text does not include a provision whereby the participants are granted with a copy of such minutes for further reference.

The interview contemplated to be taken by RCC inspectors should observe the right to nonincrimination even if this principle is not specifically stipulated under the Competition Law.

The interview appears to be different both from the statement and request for information, as follows:

• unlike the statement, the interview cannot be withdrawn;
• parties have to agree on being interviewed, whereas it is mandatory to answer a request for information;
• in contrast to the statement, the interview is structured and undertakings are specifically questioned on different issues by the RCC.

A sanction may be applied to the undertaking involved for the provision of inexact or misleading information during the interview without prejudice to the quality of the interviewee i.e. an individual or the legal representative of the undertaking. The fine that can be applied ranges between 0.1% to 1% of the total turnover in the financial year preceding the sanctioning of the contravention.

Amendments regarding the acknowledgment of a breach of competition rules

• Possibility to apply for acknowledgment prior to the release of the investigation report

The acknowledgement is still available for all types of competition law breaches i.e. anticompetitive practices, abuse of dominant position, merger related breaches, failure to perform an obligation, condition or measure imposed through a decision.

The express acknowledgment of the breach must occur before the hearings. This is a change from the current regulation that allowed undertakings to acknowledge the potential infringement during the course of the oral hearings at the latest.

Law no. 347/2015 allows the undertakings to submit a proposal for acknowledgement prior to the communication of the investigation report (which is similar to the Statement of Objections issued by the European Commission). This opens the possibility of a simplified procedure whereby the RCC will issue a simplified investigation report. Such approach is expected to be beneficial both to the RCC and undertakings and remains to be seen if this simplified procedure will be a frequent measure in competition investigations.

The amended acknowledgment procedure is very similar to the settlement procedure existing at the EU level. As such, the undertakings concerned will carryout rounds of discussions with the RCC regarding the conditions of the acknowledgment and the acknowledgment proposal will include the maximum amount of fine the undertaking is willing to pay.

In case the RCC does not accept the terms of the undertaking’s request submitted with a view to the reduction, such reduction shall not be granted. However, the acknowledgement shall not be used as evidence against the undertaking.

• Minimum fine of 0.2% to be applied and envisaged differentiated reductions in case of acknowledgement prior or after the release of the investigation report

The possibility to decrease the fine by a percentage ranging between 10% and 30% of the base level, including when the level of the fine is established at the minimum level provided by the law, is subject to a limitation consisting in a minimum fine to be applied. More specifically, the imposed fine cannot be lower than 0.2% of the turnover obtained in the previous fiscal year.

However, based on the Guidelines regarding the individualization of fines for the contraventions set forth under art. 53 of the Competition Law (“Guidelines”) submitted by the RCC for public consultation on 16 December 2015, it appears that the maximum reduction amount i.e. 30% may be applied only when the undertakings submit an acknowledgment proposal prior to the communication of the investigation report. If the proposal is submitted following the communication of such report, the maximum reduction applied will be of 15%. These Guidelines are however put up for public consultation and it is not clear whether the final version will include this differentiation of treatment.

In cases where leniency is granted without the undertaking being exempt from pecuniary liability, the reduction based on the acknowledgment can be cumulated with the one based on the leniency procedure without exceeding 60% of the level of the fine.

• Loss of the reduction benefit if the undertaking challenges the decision in court

The request for the annulment of the RCC decision in court in relation to the issues comprised by the acknowledgment generates the loss of the reduction benefit, the RCC being entitled to request the court to solve the annulment claim by removing the reduction benefit and imposing the fine accordingly, as such fine would have been determined absent the acknowledgement.

This appears to be a departure from the settlement procedure available at EU level and it remains to be clarified whether the challenge of the RCC decision on general principles of law such as non-discrimination or equal treatment will be available to the undertakings without losing the benefit of the reduction.

Competition whistle-blowers

Law no. 347/2015 introduces a new concept in the Romanian competition legislation, namely competition whistle-blowers (in Romanian: avertizori de concurenta), referring to those individuals that voluntarily provide the RCC with information regarding possible infringements of Competition Law.

The RCC undertakes to protect the whistle-blower’s identity, provided a request is made in this respect. The supply of information by the whistle-blower will not be deemed as a breach of the employee’s confidentiality obligation.

For the practical implementation of these legal provisions, the RCC currently operates an online platform aimed at ensuring communication between the competition authority and the potential competition whistle-blowers.

Inter-institutional cooperation – information exchange

In carrying out its activities provided by the law, the RCC is entitled to use, in accordance with the law, information and documents collected by other public authorities and institutions when carrying out their specific activities. Such text enables the RCC to use documents and evidence collected by authorities / institutions during criminal prosecution or tax controls, thus having access to a wider range of documents and evidence, including those that were destroyed prior to the RCC inspections.

Additionally, the RCC can exchange or use as evidence any factual or legal elements, including confidential information with the European Commission, as well as with any other competition authority in another member state of the EU vested to that end, with the observance of the legal provisions in force. Correlatively, the RCC is entitled to send information as per the above, provided that the competition authority collecting the information uses them only for the application of competition provisions and for the purpose for which they were collected by the RCC. The confidential nature of such information has to be maintained and third parties’ access thereto is allowed subject to the RCC’s prior consent.

Amendments regarding the authorization tax in case of economic concentrations

Law no. 347/2015 increases the maximum threshold of the authorization fee for economic concentrations. As such, the previous figures ranging from EUR 10,000 to EUR 25,000 are currently applicable only in cases where the RCC issues a clearance decision during phase 1 of the assessment i.e. without initiating an investigation in relation to the proposed economic concentration.

Should the RCC have strong doubts in relation to the compatibility of the economic concentration with the competitive environment, it may initiate an investigation and move the assessment in phase 2. If the clearance decision is issued by the RCC in phase 2 (disregard the nature of such decision i.e. whether it is a clearance or a conditional decision subject to commitments), the beneficiaries will pay an authorization fee ranging between EUR 25,001 and EUR 50,000.

This amendment might trigger an increase in conducting phase 2 merger assessments as it is correlated with the legislative amendment allowing the RCC to keep the authorization fees to its own budget rather than passing such fees to the State budget.

By Alina Lacatus, Counsel, DLA Piper