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Investor's Legal Brief, March 2019

  • Lithuania
  • Other

17-04-2019

1.    As of 1st of March, 2019 the amendments of Law on Legal Status of Foreigners and other legal acts related to the employment of foreigners come into force
On 1st of March, the amendments of Law on Legal Status of Foreigners (LLSF) as well as other legal acts by which the government authorities seek to amend the employment conditions for foreigners in Lithuania. These amendments are related to the seconded workers as well as workers intending to work based on Lithuanian employment agreement.
According to the new legal version of LLSF, the workers seconded as of 1st of March 2019 are once again required to obtain a work permit. The previous version of LLSF stated that the seconded workers were exempted from the obligation to obtain a work permit. However, as of 1st of March this obligation is once again reinstated. In the explanatory memorandum it is stated that such obligation is once again applicable for the seconded foreigners due to the fact that ‘many abuse cases have been indicated when the seconded workers are used for a permanent job position’.
Other important change is concerning the foreigners who come to Lithuania to work under the employment agreement concluded with the Lithuanian employer. As of 1st of March, the foreigners who intend to perform job functions which are not considered as ‘higher qualification’ under an employment agreement concluded in Lithuania will not be required to submit documents proving their qualification and their work experience within the last 2 years. Foreigners of higher qualification (EU Blue card foreigners) are still subject to such requirement to prove their qualification. Additionally, the changes in the intermediation writ for foreigners who seek to perform job functions in occupations which are included in the list of shortage professions in the Republic of Lithuania under the types of economic activities – from now on the foreigner’s qualification, past workplace within the last 2 years as well as employer’s commitment to employ the foreigner for a period not shorter than 6 months is required.
From 1st of March, the order of foreigner’s right to change the work functions or the employer is changed as well as a legal duty of registering the employment agreements of foreigners working at the Lithuanian employer is dismissed.

2.    Misleading and comparative advertisement control is passed to State Consumer Rights Protection Authority
Parliament confirmed the amendments of Law on Advertisement of the Republic of Lithuania, under which misleading and comparative advertisement control passes to State Consumer Rights Protection Authority from 1 May 2019. Currently institution handling this control is Competition Council.
It is expected that after transfer of control duties to State Consumer Rights Protection Authority the higher effectiveness of advertisement law compliance control will be reached ensuring better protection of consumer’s rights.
Based on the amendments misleading and comparative advertisement investigations, which are currently assigned to Competition Council competence and which will be started prior to 1 May 2019, will be handled and finished by Competition Council, under procedural rules valid prior to amendment of the laws.   

3.    New legal acts, regulating trademark and design oppositions, appeals and cancellations came into force
As of 01/01/2019 the new Law on Trademarks of Lithuania is in force and the new law required amendment of related legislation as well. On 22/03/2019 new rules, regulating oppositions and appeals came into force and also new rules regarding invalidation of trademark registrations were introduced. This marks new era for Lithuanian IP dispute resolution system, because until now invalidation matters were solved before Vilnius regional court, and not this task was shifted to Lithuanian State Patent bureau.  
The new legislation will require additional consideration, since it amends such aspects as ability to get compensation of dispute resolution expenses, application of interim measures, right to obtain evidences and so on.

4.    List of data processing operations subject to the requirement to perform data protection impact assessment has been published
The State Data Protection Inspectorate has published a list of data processing operations subject to the data protection impact assessment (DPIA).
Data protection impact assessment – is a procedure which is performed in cases when due to the specific type of data processing activity or, especially when innovative technologies are used and having in mind the certain data processing type, amount, context and purposes, the rights and freedoms of natural persons is of great danger. The DPIA procedure shall be performed inter alia in cases when:
•    Personal data processing is conducted for scientific or historical research purposes in at least one of the following cases:
o    when special categories of personal data are being processed without the data subject`s consent or personal data processing is conducted matching or combining datasets;
o    when data of under-age persons are processed;
o    when the personal identification number is processed.
•    Personal data processing when notification of data recipients, to whom personal data were disclosed, on personal data rectification, erasure or restriction of processing of personal data in accordance with Article 19 of the Regulation 2016/679 19 proves impossible or would involve a disproportionate effort.
•    Processing of personal video data when video surveillance is conducted in at least one of the following cases:
o    in premises and/or territories which are not owned by the controller or managed on other legal grounds, when video surveillance is conducted in accordance with principles relating to the processing of personal data;
o    at healthcare, social care, detention establishments and other agencies where services are provided for vulnerable data subjects; or
o    combined with sound recording.

•    Recording of telephone conversations and so forth.

5.    Amendment of the Law on Competition
Amendments of the Law on Competition have been adopted by Parliament under which the scope of Competition Council procedural rights and list of procedural infringement was extended. In addition to this, new wording of the Law on Competition also establishes benefit which would be paid to persons providing information about prohibited agreements.  
The new amended wording of the Law on Competition will come into force 1 July 2019 and Competition Council will have additional the right to receive written or oral explanations from any person, which may have relevant information while currently Competition Council can ask for such information only from parties related to investigation. Also, Competition Council will have the right to impose fines when misleading or incomplete information is provided while currently fines can be imposed only if information is incorrect or not provided.
In addition to the above, once the new wording of the Law on Competition will come into force new benefit will be established for persons which provide information about prohibited agreements. The benefit could amount to 1% from the fines imposed to infringement participants, but not less than 1000 and not more than 100 000 EUR.

6.    The Public Procurement Office has prepared guidelines for the Procurement of Construction Works

The successful public procurement is not only due to the proper execution of procedures but also by as responsible preparation for the procurement. The Public Procurement Office has established the guidelines for the Procurement of Construction Works in order to assist contracting authorities in organizing and implementing procurement of construction works.

Some suggestions are included in the guidelines such as:
•    how to prepare for the such procurement,
•    what should be considered when preparing the procurement documents and defining the object of the intended procurement,
•    how to determine the value of the procurement,
•    what qualification requirements should be required for the contractors,
•    Annexes to the guidelines provide an exemplary list of the evaluation criteria for the most economically advantageous tender, also the recommendation regarding the suppliers’ group participation in procurement procedures as well as the calculator for the value of additional/unnecessary works.

The guidelines precisely state that:

•    in case when supplier has not indicated that it shall rely on the capacities of other economic entities (for qualification requirements), it shall not acquire the right to use new economic entities after the term of submission of tenders in order to comply the qualification requirements,
•    the requirement to submit the warranty or bank guarantee may be determined only in cases of high value public procurement or complex construction works. In other cases, it is suggested to use other contract enforcement measures, for example, to claim for penalties.

The guidelines also provide some more practical advice regarding the assistance for contracting authorities to properly prepare and effectively implement the public procurement of construction works while allowing suppliers to submit the competitive tenders.

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