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DLA Piper has advised Partners Group AG, a global private markets investment manager, on the (indirect) acquisition of three commercial real estate properties in Poland. The acquisition was conducted by a Luxembourg acquisition vehicle and structured as a mixed share and asset deal pursuant to Luxembourg and Polish law, respectively. The commercial real estate properties were sold by a fund advised by an affiliate of Peakside Capital Advisors AG, which was advised by Dentons. The existing Peakside property management team will continue to manage the commercial real estate properties.

The three commercial real estate properties — located in Warsaw (Atrium Centrum and Atrium Plaza) and Poznan (Poznan Financial Center) — include approximately 50,000 square meters of leasable space. 

The DLA Piper team was led by Partner Dominik Stuhler and included Partners Catherine Pogorzelski, Geoffrey Scardoni, Jacek Gizinski, Michael Holzhauser, Counsel Michal Pietuszko, Senior Associates Daniel Wied, Kai Terstiege, and Ambroise Foerster, and Associates Tobias Hoppe, Emma Massicard, Grzegorz Godlewski, and Rafal Burda.

Dentons did not reply to our inquiry about its work on the deal.

Image Source: atriumcentrum.pl

Buzescu Ca has represented Fina Energy Trading BV before the Romanian Energy Regulatory Authority on its successful application for an electricity trader license. Fina Energy Trading BV is the subsidiary of Fina Elektrik Enerjisi AS, a leading Turkish energy company.

Last year Buzescu Ca represented both Gazprom Marketing & Trading (reported on by CEE Legal Matters on July 22, 2015) and Petrol (reported on by CEE Legal Matters on May 21, 2015) in similarly successful applications to the Romanian Energy Regulatory Authority.

As was mentioned recently, this summer has seen an increase in the Serbian Competition Commission’s (Commission) willingness to perform dawn raids of company premises. After a number of small scale dawn raids that are still to result in official commencements of follow-up proceedings, the Commission announced that it will press cartel charges against major international tobacco companies.

On 30 November 2015 the Commission raided local subsidiaries of Philip Morris and British American Tobacco, and, just a few days later, launched an official investigation against Philip Morris, British American Tobacco, JT International, Imperial Tobacco, TDR and Monus. According to the Commission, these companies, which take a significant share of the Serbian market, are accused of coordinating their respective price formation policies thus breaching Article 10 of the Serbian Competition Act. The prescribed fines for such violations are up to 10% of the respective undertaking’s annual turnover in Serbia, but it should be noted that the Commission has so far been reluctant to impose the statutory maximum.

Given that much of the recent reform in the Commission’s competition law enforcement has been motivated by the progress in Serbia’s EU accession process, market players should become increasingly weary of coming under the radar of the Serbian watchdog and start considering introduction of appropriate internal procedures so as to minimise consequences of unannounced inspections of business premises.

By Nikola Kasagic, Senior Associate and Rastko Pavlovic, Associate, SOG / Samardzic, Oreski & Grbovic

In 2016 important amendments to the Civil Code and the Civil Procedure Code in Poland will come into force. Most of the amendments aim to modernise Polish civil law and procedure. Consequently, the new provisions are said to constitute a series of facilitating measures for civil law relations and disputes governed by Polish law.

Some of the changes introduced by the act amending, among others, the Civil Code and Civil Procedure Code will be submitting electronic lawsuits, receiving court letters via email, and performing certain legal acts by means of new (document and electronic) forms. Most of the provisions will come into force in September 2016.

Main amendments to the Civil Code

Besides the already existing main forms of the legal acts, ie: (i) written, (ii) with a certain date, (iii) with signatures certified by a notary public, and (iv) notarial deed, there will be two new forms of legal acts: (i) document form, and (ii) electronic form.

The amendments to the act explains that a document constitutes any information-carrier enabling a person to become acquainted with the “carried” information. The declaration of will is made in document form, once it is made in the form of a document allowing one to verify the identity of a person making the declaration. The newly introduced document form will include modern forms of communication such as SMS text messages or emails, which are widely used in practice but do not fulfill the current requirements of a written form since they lack handwritten signatures.

The declaration of will is made in electronic form once it is signed with a secure electronic signature verified by a valid qualified certificate.

Electronic and written forms are deemed to be equivalent, ie, they can be used interchangeably. This equivalence, however, is only conditional as it can be excluded by an agreement or by the provisions of law.

If a written, document, or electronic form is required, the legal act performed without observing such form will be invalid only if the law provides for nullification, or the parties agree to nullify the legal act.

If the agreement was made in written, electronic or document form, it is sufficient that its termination, withdrawal or a notice are set out in document form, unless otherwise agreed to by the parties, or stipulated by law.

Main amendments to the Civil Procedure Code

In connection with the introduction of document and electronic forms of legal acts, the rules of evidence will be amended accordingly to include these new forms.

Once the amendments come into force, it will also be possible to submit the letters to the courts (including lawsuits) electronically. The courts will be able to use electronic deliveries not only in selected proceedings (as is currently the case), but also in traditional ones. Within three years of the entry into force of the amendment, using the electronic system will be possible, provided that courts have the required technical capacities. After three years the courts will have to ensure that the possibility of submitting the court letters electronically in every case exists.

Consequently, the delivery of court correspondence will be confirmed in two ways: traditionally by placing a signature on an acknowledgment of receipt, or by means of a post operator sending information about such delivery to the court in electronic form.

The President of the court will be authorised to order that a trial be held in an open session – using electronic means (eg, via videoconference) – so that the parties, witnesses and other persons involved will be able to participate in the trial remotely. It will also be possible to participate in a hearing from a different court building.

Another amendment aimed at speeding up the proceedings is connected with the exclusion of judge –which is sometimes abused in order to extend the proceedings. In case a party applies for excluding a judge, the judge will be authorised to perform all usual tasks and actions related to a given case, eg, hear witnesses, appoint court experts until the application is examined. Until that time, however, the judge cannot issue judgments. If the judge is finally excluded, all actions carried out to that point will be considered null and void unless any undertaking can be shown to have been necessary and urgent. On the contrary, if the judge is not excluded (which often happens), all actions will remain to be valid.

Summary

All of the changes set out will lead to simplified and modernised civil law and procedure. Provisions introducing new forms of legal acts will cover modern ways of communicating and doing business such as the use of SMS text messages and emails, while the provisions on the use of electronic means in the proceedings will constitute the next level of the computerisation of civil procedure. Thanks to the amendments, court proceedings should also be quicker and easier going forward. 

Quote:

The newly introduced document form will include modern forms of communication such as SMS text messages or emails, which are widely used in practice but do not fulfill the current requirements of a valid legal written form. 

By Krzysztof Lesniak, Attorney at Law, Schoenherr

Lex Borealis has advised Inteco JSC, a large Russian developer, on its acquisition of the A-101 Group, which consists of “38 companies holding residential and non-residential projects in Moscow and the Moscow Region and land for development with the total area exceeding 24 million square meters.”  The deal closed on December 11, 2015.

According to a Lex Borealis press release (from which that previous quote was drawn as well), “Inteco is one of the leading Russian holdings focusing on full-cycle development projects starting from concept development to construction and operation of real estate projects throughout Russia.” The same press release describes ?101 as “one of the biggest urban development projects in the Russian Federation. There is more than 1 billion square meters of real estate assets in the active construction phase as of today and more than 20 billion square meter of residential and commercial property in the pipeline.”

Lex Borealis conducted “a comprehensive acquisition due diligence of all 38 companies comprising A101 and their respective assets, structured the acquisition, and supported the transaction until completion.” The firm’s team consisted of Alexey Peshkov, Kirill Buryakov, and Olga Chaykovskaya.

Image Source: a101.ru

On December 15, 2015 amendments to the Federal Constitutional Law on the Constitutional Court of the Russian Federation (the “Law on the Constitutional Court”) came into force, investing the Constitutional Court of the Russian Federation (the “Constitutional Court”) with powers to decide whether judgments of international human rights bodies are enforceable in Russia.

The key aspects of the adopted amendments are as follows:

• the amendments are geared towards the implementation of Ruling of the Constitutional Court No. 21-P dated July 14, 2015 (“Ruling No. 21-P”) on the enforcement of the judgments of the European Court of Human Rights (“ECHR”) in Russia;
• the amendments define the process by which the Constitutional Court determines whether the judgments of any international human rights bodies, including the ECHR, may or may not be enforced, which can be set in motion at the special request of an authorized federal executive body or at the request of the Russian President or the Russian Government for an interpretation of the Russian Constitution;
• the amendments provide that if the Constitutional Court issues a ruling to the effect that a judgment of an international human rights body cannot be enforced, or if the Constitutional Court interprets the provisions of the Russian Constitution as not permitting the enforcement of the judgment, this will mean that performing or adopting any actions or acts aimed at the implementation of the judgment in Russia is prohibited.

We set forth below a brief overview of the key new provisions, as well as related issues.

PURPOSE OF THE AMENDMENTS

The explanatory note states that the draft bill was developed in pursuance of Ruling No. 21-P on the enforcement of the judgments of the ECHR in Russia.

Recall that in its Ruling No. 21-P, the Constitutional Court stated that in exceptional cases Russia could deviate from its obligation to enforce an ECHR judgment if this was the only possible way to avoid violation of the fundamental principles and norms of the Russian Constitution.

In considering the ways in which Russia could exercise such a right, the Constitutional Court noted that a special legal mechanism could be laid down that the Constitutional Court could use in deciding whether or not the judgments of the ECHR could be enforced from the standpoint of the principles of the supremacy and precedence of the Russian Constitution. The Constitutional Court also indicated separately that the Russian President and the Russian government may petition the Constitutional Court in this regard requesting an interpretation of the provisions of the Russian Constitution.

Not only do the new amendments define the process by which the Constitutional Court can determine whether a judgment of the ECHR may or may not be enforced, but they also address the judgments of other international human rights bodies. These include, among others, the treaty bodies of the United Nations (such as the United Nations Human Rights Committee).

MECHANISMS FOR DETERMINING WHETHER THE JUDGMENTS OF INTERNATIONAL BODIES MAY BE ENFORCED

The amendments provide for a new ground for the Constitutional Court to review cases: “an identified uncertainty as to whether the judgment of an international human rights body can be enforced if it is based on an interpretation of the provisions of an international treaty to which Russia is a party that is allegedly at variance with the Russian Constitution.” In other words, Russia cannot enforce the judgment of an international human rights body if the Constitutional Court decides that such body’s interpretation of an international treaty conflicts with the Russian Constitution.

A review of such matter by the Constitutional Court may be initiated in one of two ways: (1) by requesting clarification of whether a judgment of an international human rights body can be enforced, or (2) by requesting an interpretation of the Russian Constitution.

First way provides for review by the Constitutional Court of requests for clarification of whether a judgment of an international human rights body can be enforced as a special legal procedure provided for by the new Chapter XIII.1 of the Law on the Constitutional Court.

The right to petition the Constitutional Court with such a request vests in the federal executive body authorized to defend the interests of Russia in cases heard by such international body on applications lodged against Russia (for the ECHR this is the Russian Ministry of Justice).

A determination on whether a judgment of an international human rights body can be enforced may be made either in a hearing conducted by the Constitutional Court, or without such hearing being conducted, at the discretion of the Constitutional Court, depending on whether there are past legal precedents and whether there is a need to conduct a hearing to protect the rights of a party (Art. 47.1 of the Law on the Constitutional Court).

Under the new Chapter XIII.1, the Constitutional Court determines whether the judgment of an international human rights body can be enforced “from the standpoint of the foundations of the constitutional system of the Russian Federation and the legal regulation of human and civil rights and freedoms established by the Constitution of the Russian Federation”.

After considering the case the Constitutional Court issues its ruling: either that the respective judgment of the international human rights body can be enforced (in full or in part) or that it cannot be enforced (in full or in part).

If it rules that the judgment of the international human rights body cannot be enforced, this will mean that performing or adopting any actions or acts aimed at the implementation of the judgment in Russia is prohibited.

Second way provides for review by the Constitutional Court of requests for the interpretation of the provisions of the Russian Constitution in order to eliminate any uncertainty as to how they are to be construed, taking into account any identified discrepancies between how an international human rights body has interpreted the provisions of an international treaty and the application of the provisions of the Russian Constitution to enforcement of the judgment of the respective body. Such requests may be lodged by the Russian President and the Russian government.

The procedure for hearing such cases is no different from the procedure for hearing any other cases on the interpretation of the Russian Constitution.

If the interpretation of the provisions of the Russian Constitution results in the ruling that the respective judgment cannot be enforced, this will also mean that performing or adopting any actions or acts aimed at the implementation of such a judgment in Russia is prohibited.

IMPACT OF THE AMENDMENTS

The amendments can only be fully assessed once a sufficient body of case law on implementation of the mechanisms for determining whether the judgments of international human rights bodies can be enforced has been produced. It can be expected that in considering individual requests the Constitutional Court will be guided by the approaches previously elaborated by it in more detail in Ruling No. 21-P.

By Alyona N. Kucher, Partner, Andrey A. Gorlenko, Senior Attorney at Law, Debevoise & Plimpton

Sayenko Kharenko has promoted antitrust lawyer Dmitry Taranyk to Partner. The promotion will take effect on January 1, 2016 and will bring the total number of Partners in the firm to nine.

Taranyk, who joined Sayenko Kharenko in 2004, is the Head of the firm’s Antitrust and Competition Practice, advises clients on antitrust law matters such as merger control, concerted practices, abuse of dominance, monopolization, and unfair competition. His practice covers antitrust matters in relation to multinational and domestic acquisitions and joint ventures, with a particular focus on resolving complex antitrust disputes involving multinational companies and developing antitrust compliance programs and policies. He also also significant experience in corporate/M&A, foreign investments, and privatization.

Taranyk holds an LL.M. degree from Pittsburgh University Law School and a master’s degree with honors in international law from the Institute of International Relations, Kyiv Taras Shevchenko University Law School.

Sayenko Kharenko Managing Partner Vladimir Sayenko commented: “We are extremely pleased to welcome Dmitry to the partnership. His promotion is a natural result of the consistently high performance of Mr Taranyk during his ten years service with the firm. Dmitry has handled client matters with strong commitment and has added significant value to his clients’ business results and the practice of the firm as a whole.”

The effective date of the regulation, subject to our article published on November 17, 2015 titled “Turkey Green-Lights Comparative Advertising”, which will allow using components related to competitors’ goods, trademarks, trade name and services in the advertisements in Turkey is postponed to the end of 2016.

The provision was expected to enter into force on January 10, 2016, but an amendment to the regulation was published in the Official Gazette of December 25, 2015 with the number 29573 and postponed the effective date of this provision to December 31, 2016. 

The adventure of this regulation dates back to the beginning of 2015, when the Turkish Ministry of Customs and Trade issued a new regulation on the principles and procedures pertaining to advertising and abrogated and replaced the outdated regulation of 2003. The regulation was a candidate to end the prohibition for comparative advertising in Turkey and included a provision allowing it. However the effective date of the provision was postponed to January 10, 2016. Now the entry into force of this provision is postponed for the second time, just sixteen (16) days before it was expected to be entering into force. 

Therefore we may expect the comparative advertising through indicating the competitors’ names, trademarks, logos and titles to be legal in Turkey by the end of 2016, if no further amendments are made on its effective date. Advertisers should now hold off their preparations for this new era and leave over their marketing plans for 2017.

You may find a detailed analysis of the provision and its possible legal consequences in our previous article “Turkey Green-Lights Comparative Advertising” available at http://www.ceelegalmatters.com/index.php/legal-analysis-tmt-ip/118-tmt-ip/3519-turkey-green-lights-comparative-advertising. 

By Gonenc Gurkaynak, Managing Partner, Ilay Yilmaz, Partner and Burak Yesilaltay, Associate, ELIG, Attorneys-at-Law

In Poland, procedures related to granting protection to international trade mark are regulated by The Industrial Property Law of 30 June 2000 (“IPL”).

According to current regulations (ie as of 08 December 2015), such protection may not be granted in situations where a trade mark is similar or identical to a trade mark already registered in the Republic of Poland. This is also the case if the period between the date when the protection of the earlier trade mark ended and the date on which an application for a similar mark was made is less than two years.

There is a possibility that this two-year waiting period can be excluded. This occurs when the protection of a trade mark has lapsed due to its non-use or when the holder under an earlier right consents to protection being granted for an identical or similar mark.

On 11 September 2015, the Polish Parliament revised the provisions of the IPL, with the amendment set to enter into force on 15 April 2016. The long-awaited change brought about by this amendment makes it possible to register a trade mark that is identical or similar to a trade mark that is already registered upon the written consent (a letter of consent) of the latter’s holder. Such consent will result in the dismissal of any potential opposition to a decision granting protection to the latter trade mark.

The current lack of such normative regulation has raised serious practical problems. For example, an entrepreneur who is part of a capital group currently does not have the possibility of obtaining registration of trade mark in the Republic of Poland through a subsidiary if, inter alia, the parent company has already locally registered an identical or similar mark as a trade mark. The changes introduced by the amendment will allow the entrepreneur to register an identical or similar mark upon prior consent.

By Michal Gruca, Attorney at Law, Schoenherr

Dorda has advised RL Projekt Handelskai Holding GmbH (a member of the Raiffeisen Group) and SIGNA R.E.C.P. Development “Office Center Handelskai” GmbH (part of the SIGNA Group) on the EUR 189 million sale of the Rivergate office building in Vienna. The buyer — a 50:50 joint venture of Canadian real estate fund Dream Global and an Asian sovereign wealth fund — was advised by Schoenherr on all Austrian aspects of the deal, with Greenberg Traurig serving as lead counsel and advising on the joint venture.

The Rivergate is a landmark building situated directly by the river Danube. It offers 50,000 square meters of leasable space for offices, shops, and restaurants, 96% of which is rented out to tenants, including Thales Austria, Global Blue, Grant Thornton, the City of Vienna, Sky, Mars, and Skania. The Rivergate is one of the “greenest” office buildings in Vienna and surroundings, earning the EU GreenBuilding certification, as well as the DIVA award for the most innovative real estate project. Moreover, the Rivergate is the first building in Austria to have received LEED Platinum certification. 

The Dorda team was led by Partner Stefan Artner, working with Associates Klaus Pfeiffer and Magdalena Brandstetter. Speaking of his team’s work on the deal, Artner said: “On this occasion, we are particularly pleased that we have been able to successfully assist in the sale of a building which is certified according to the very latest environmental standards. The interest in the building is a testament to the growing level of environmental awareness in the real estate and investor sectors.” 

The Schoenherr team consisted of Partners Michael Lagler and Peter Konwitschka, Attorney Georg Schuh, and Senior Associate Laurenz Schwitzer.

Greenberg Traurig’s Berlin-based team consisted of Partner Henning Sieber and Associates Alexander Ahrens and Nicolai Lagoni.

Image Source: www.auer-weber.de