Visit our dedicated page on merger and antitrust review during wartime updated on a rolling basis.
Update: the wartime Guidance ceases to apply on 17 June 2022. Notifications filed on or after 20 June will be subject to standard rules. See more details here.
Below we provide responses to some practical questions in relation to the wartime Guidance (see more details here) that we most often receive from filers and their global counsel:
- Standard or fast-track procedure? The Competition Law provides that Phase I review may take up to 45 calendar days (in standard procedure) or up to 25 calendar days (in fast-track procedure). Considering that standard procedure notifications usually receive a more favourable treatment by the AMC than the fast-track ones, and that the main advantage of the fast-track (shorter review period) anyway becomes unavailable under the Guidance, it is generally recommended to file new notifications during the martial law under the standard procedure.
- Hard copy or electronic submission? The Guidance allows to submit hard copies to Lviv office or send the scans by email. In the latter case parties may need to explain why they are unable to make a hard copy submission. It should also be noted that the AMC’s email address indicated in the Guidance (email@example.com) is hosted on the servers of a private third-party provider, thus, it may be less secure than authority’s own email at the governmental domain (currently inoperable). So, unless the parties have objective reasons to make an electronic submission (e.g., issues with delivery of documents because of military combats or otherwise), it is generally recommended to file in hard copy.
- Does the "tacit" clearance apply? Under the Competition Law, the clearance is deemed to be granted with the lapse of Phase I review period (25th or 45th day after submission, depending on the procedure), unless (i) the notification is rejected as incomplete during first 15 days after submission, (ii) the AMC issues formal (written) clearance before lapse of Phase I, or (iii) the AMC initiates Phase II. The Guidance, however, clearly shows authority’s intention to disregard possibility of such "tacit" clearance for new notifications filed during the martial law. Nevertheless, considering the Competition Law has the higher legal force than the Guidance, an argument that parties closed the deal during the martial law relying on "tacit" clearance should help keeping the potential fine at its minimum or, in the best case, avoid the fine at all. As regards the notifications that were filed before the martial law – the Guidance is silent on those. Though, it is quite broadly worded and potentially allows applying the same rules also to such cases.
- Do parties need to inform the AMC of closing if it happened before clearance? No. Though, the AMC may ask about it after the martial law ends.
- Can parties provide more info&docs with the filing than provided by the Guidance? Yes, the Guidance provides only for minimum requirements to new filings. Remaining materials, which are required by the Merger/Antitrust Regulation, may be filed either with the filing itself or as a supplement within 3 months after the end of the martial law. If complete set of the info&docs required by the respective regulation was filed from the start, then after the end of the martial law parties would need to update only those materials that have changed over time. Also, filing a complete notification that complies with all disclosure requirements under the Merger/Antitrust Regulation may (i) reinforce the argument that the "tacit" clearance rule should have applied, and (ii) allows to complete the submission at a stroke with no need of additional work afterwards. Still, the AMC has the right to request additional information when the review resumes.
- What cases are likely to attract highest fines? The Guidance says that higher fines are possible if parties provide false information and that the maximum fines will apply to Russia-linked transactions. Also, higher fines may be expected for closing without clearance of transactions that raise competition concerns (e.g., where Phase II review was warranted).
- Do notarization and apostille requirements continue to apply? Generally, yes. The Guidance says that it may be possible to deviate from certain obligations (including apostille and notarization) if there are objective reasons for this, which will need to be explained to the authority. However, the notarized and apostilled originals will nevertheless need to be filed after the end of the martial law.
- If parties don’t file during the martial law and pay the higher fine for that (up to ~EUR10,500) would they still be required to file after the end of the martial law? Yes, clearance requirement applies irrespective of whether a fine was imposed. The AMC will likely insist on parties making a filing and may threaten with even higher fines if they fail to do so. They used this approach in similar cases in the past.
- Is the statute of limitation for imposing fines suspended during the martial law period? No.
If you have questions, please contact Igor Svechkar, Alexey Pustovit or Pavlo Verbolyuk.
To avoid recurring alerts, we have set up a dedicated section at our website where we will be placing all important updates on the merger/antitrust review during the wartime as well as Q&A based on our latest experience and communication with the authority. Follow this link to visit.