The Ukrainian merger control legislation includes:
The Antimonopoly Committee of Ukraine (AMC) is the primary state authority entrusted with ensuring protection of competition; it has powers to investigate and grant or refuse clearances for mergers (concentrations) as well as to investigate and penalise violations of the merger control regime. If the AMC refuses to approve a concentration, the Cabinet of Ministers of Ukraine (CMU) may overrule the decision.
The Competition Law refers to the term ‘concentration’, which is defined quite broadly to cover the following transactions:
(i) the merger of two or more previously independent undertakings, or the takeover of one undertaking by another;
(ii) the acquisition of direct or indirect control over an undertaking, including through:
(iii) the establishment by two or more undertakings of a new undertaking that will independently pursue business activity on a lasting basis, while its establishment does not result in coordination of competitive behaviour either of its parents or of the new undertaking, on the one hand, and its parents, on the other; and
(iv) the direct or indirect acquisition of participation interests (shares, equity) whereby certain thresholds (25 per cent or 50 per cent of the votes in the highest governing body of the undertaking concerned) are reached or exceeded.
With regard to (ii), although it provides only a couple of examples of notifiable transactions, it is in fact a catch-all provision intended to cover acquisitions with respect to any kind of control.
The Ukrainian approach to qualification of transactions is quite formalistic and the AMC usually concentrates on the form of a transaction rather than its substance. For instance, in case of multi-stage transactions, the AMC requires separate steps formally qualifying as a concentration to be notified separately; for example, an acquisition of joint control by two independent undertakings through a special purpose vehicle (SPV) would normally require two separate clearances - one for joint establishment of a purely technical SPV and one for the acquisition of a target. Depending on the structure of a deal, it may involve other triggering events requiring additional clearances.
The same complexity is in place with multiple acquisitions; for example, in asset deals involving (among other assets) acquisition of shares in a number of directly acquired entities, where one undertaking simultaneously acquires from the same seller a number of direct targets, each of such acquisitions shall technically be cleared by the AMC through issuing a separate clearance decision.
The Competition Law also provides for a number of exemptions from the filing obligation; in particular, the following transactions do not qualify as concentrations meaning that no merger clearance is required irrespective of parties’ turnover or asset value figures:
Any establishment by two or more undertakings of a new undertaking that will independently pursue business activity on a lasting basis qualifies as a concentration, unless such establishment results in coordination of competitive behaviour either of its parents or of the new undertaking, on the one hand, and its parents, on the other. In the latter case, it may require an antitrust (as opposed to a merger) clearance.
A joint venture is deemed to be established once it is registered in the commercial register or the like. Preparatory stages of a joint venture often need to be passed for the joint venture to become a full-function undertaking, which also amounts to a notifiable concentration and, if not cleared by the AMC, can attract sanctions.
The Competition Law provides for a very broad definition of control referring to the ability to exercise decisive influence (including via blocking rights) on the strategic decisions related to the business activity of an undertaking. In particular, control is deemed to exist if an undertaking:
Notifiability of joint-to-sole control change is not entirely clear under Ukrainian merger control rules and the relevant enforcement practices of the AMC. However, the AMC on a number of occasions confirmed that it considers such change to present notifiable transactions.
As regards negative control, there is little guidance on what constitutes negative control save for some quite confusing tests contained in the Concentrations Regulation, namely the ability to block decisions of a company relating to its commercial activity, for example, veto on budget, business plan (either at shareholder level or top management or supervisory bodies level). In practice, it may be difficult to distinguish negative control from standard minority protection.
Interests below the 25 per cent threshold (without control rights) are not caught.
A transaction qualifying as a concentration requires merger clearance by the AMC if it satisfies the following criteria:
All figures shall be taken for the last financial year immediately preceding the year of the concentration.
In either case, the parties to a concentration should be considered at their group level. That means that the assets or turnover of the controlling shareholder or seller should still be counted towards the target.
The concentrations falling below these thresholds do not require merger clearance by the AMC. However, the parties may voluntarily file such concentrations.
Filing is mandatory; there are no exceptions.
An obligation to notify arises if the parties hit the Ukrainian filing thresholds irrespective of the overall effect of the transaction in Ukraine. Thus, even foreign-to-foreign deals having no reasonable nexus to Ukraine and its competitive environment may be caught.
However, pursuant to general provisions of the Competition Law, an argument can be made that application of the turnover or asset thresholds should be qualified by the effects doctrine. Under this interpretation, it may be argued that clearance is not required as the transaction lacks reasonable local nexus and cannot have any anticompetitive effect. Still, this argument runs contrary to the current approach of the AMC in application of merger control rules. The AMC has on several occasions expressed its unofficial position on the issue: it claimed that such transactions are subject to clearance as the AMC has exclusive authority to determine whether a particular transaction may or may not impact competition in Ukraine, and verification of such impact is in fact conducted while reviewing a merger case and granting the clearance.
There are no specific rules.
There are no deadlines for filing a notification in Ukraine. The only requirement is that the AMC clearance is obtained before the implementation of the concentration. It is possible to notify transactions at their early stages where no definitive agreement is reached.
Failure to notify can lead to a fine of up to 5 per cent of the consolidated turnover in the year immediately preceding the year when the fine is imposed, but in practice the fines in merger cases are considerably lower. The Guidelines on Fines (last revised in 2016) sets basic amounts of fines for violation of competition laws, including for merger cases. Under the Guidelines of Fines, the basic fines in merger cases are:
When defining the basic fine, the AMC may apply coefficients depending on the effect of violation on competition, social importance of the products, profitability of economic activity connected with violation, which may increase or decrease the fine. Also, in each case, the above basic amounts are subject to possible further adjustment for aggravating or mitigating circumstances.
Although the statutory ceiling for a fine, of 5 per cent of the turnover in the year preceding the fining decision, remains in force, the authority clarified that the maximum theoretical fine can be imposed only in exceptional circumstances to ensure deterrence. The Guidelines on Fines have a recommendatory nature and are non-binding. However, the AMC has publicly committed to follow its rules on setting fines strictly.
The fine may be imposed on the entire corporate group of the offender whose actions or omissions have led to violation of the Competition Law (in practice: on the acquiring party, the founding partners in case of establishment of a joint venture or the merging entities).
In addition to the financial penalties, parties may potentially be subject to any or all of the following sanctions:
The filing is a joint obligation of the participating undertakings, which can mean the acquirer and the target. The controlling seller can also be the applicant on the target’s side in a share deal or generally in an assets deal, the founding partners with respect to joint ventures or the merging entities.
The filing fee is 20,400 hryvnas (approximately €650) per one notifiable event (a transaction may require multiple notifications depending on its structure).
The parties are subject to a standstill obligation. Closing prior to clearance constitutes a violation of Ukrainian merger control rules. The suspension requirement applies globally and Ukrainian merger control rules do not provide for any possibilities to obtain individual derogation or avoid sanctions by carving out Ukraine.
The same sanctions apply in case of closing or integrating the activities of the merging businesses (even partly) before clearance, as outlined in question 9. However, in practice, closing a non-problematic transaction before clearance but after the filing was made is likely to receive a more favourable treatment by the AMC than an omission to file.
The fining decisions are publicly available from mid July 2015. Since then the AMC has imposed more than 100 fines for failure to notify, closing or integrating activities before clearance. In almost all such cases, the amount of fine did not exceed 510,000 hryvnas (approximately €16,300) and these were likely imposed for implementing non-problematic transactions. The authority publishes only redacted versions of decisions on its website and it is not possible to comprehensively analyse the reasons behind the calculation of a fine.
One of the largest fines in a merger case amounted to approximately 3 million hryvnas (approximately €100,000). According to publicly available information, the fine was imposed for closing before clearance by means of interlocking directorship, which was discovered during the Phase II review. Otherwise the transaction was found non-problematic and was cleared without conditions.
There are no such solutions. Still, a hold-separate or carveout arrangement is likely to be treated by the AMC as a mitigating factor when deciding on the amount of a fine.
The notification shall include the following, in particular:
Furthermore, along with the hard copy of the notification, parties are required to provide a CD with an electronic version (PDF/Word, etc) of the notification and all documents attached to it.
Documents to be submitted to the AMC should be duly certified and translated into Ukrainian. Confidential information should be properly marked in the notification so that the AMC treats it accordingly.
As regards the missing information, there may be the following scenarios:
Also, failure to provide information to the AMC within the specified period or provision of wrong, inauthentic or untrue information may result in a fine in the amount of up to 1 per cent of the respective party’s turnover in the year immediately preceding the year when the fine is imposed. However, the Guidelines on Fines clarify that the fine for such violation is capped at 136,000 hryvnas (approximately €4,300). This amount is also subject to possible adjustment for aggravating or attenuating circumstances.
Finally, the AMC may reconsider its decision if it was based on materially incomplete or unauthentic information.
The standard merger review process includes the following steps:
A fast-track simplified 25-day review procedure is available for transactions where only one party is active in Ukraine or parties’ combined shares do not exceed 15 per cent on the overlapping markets or 20 per cent on vertically related markets.
A standard merger review timetable is as follows:
Also, a fast-track simplified 25-day review procedure is available for transactions reasonably raising no competition concerns (see question 17).
The authority usually takes the whole of the Phase I and Phase II review period for review of transactions and adopts the relevant decisions during the last week before the respective deadline.
If prior to or on the date when the Phase I or Phase II period expires the AMC has failed to adopt any decision on the concentration, clearance by tacit consent is deemed to have been granted, although in practice the AMC tends to issue formal clearances.
Pursuant to the Competition Law, the AMC approves the concentration if it does not lead to monopolisation (achievement or strengthening of a dominant position in the market) or a substantial restriction of competition in the Ukrainian market or a significant part of it. Otherwise, the transaction will be prohibited unless the parties offer sufficient remedies (see question 25).
The test for dominance is as follows:
Pursuant to the Guidelines on the Assessment of Horizontal Mergers and recently adopted Guidelines on the Assessment of Non-Horizontal Mergers, the AMC is also required to consider the following countervailing factors while reviewing the concentrations:
As a general rule, the AMC approves the concentration if it does not lead to monopolisation (achievement or strengthening of a dominant position in the market) or a substantial restriction of competition in the Ukrainian market or a significant part of it (see question 19).
Under the Guidelines on the Assessment of Horizontal Mergers, the authority is also required to assess whether the concentration would result in any of the following effects:
Also, under the Guidelines on the Assessment of Non-Horizontal Mergers (approved in early 2018), the AMC is required to consider the following potential effects:
The AMC would predominantly consider competition issues. Other considerations may still be used as supporting arguments, although they are unlikely to be decisive.
However, the CMU may overrule the AMC’s prohibition decision when the positive effects of the transaction on the public interest outweigh the negative impact of the restriction of competition caused by the transaction (see question 23).
The AMC may take into account economic efficiencies when reviewing the notification, although such arguments are unlikely to be decisive. In cases posing serious competition concerns, adequate remedies would nevertheless be required.
However, economic or other efficiencies will be taken into account by the CMU, which may still authorise a transaction that has been prohibited by the AMC. Such decision is possible if the positive effects of the transaction on the public interest outweigh the negative impact of the restriction of competition caused by the transaction, unless such restriction is not necessary for attaining the purpose of the concentration or jeopardises the market economy system.
The AMC can prohibit a concentration if it leads to monopolisation or a substantial restriction of competition in the Ukrainian market or a significant part of it.
The AMC clearance decision can be made conditional on the parties undertaking to perform, or refrain from performing, certain actions aiming at removing or mitigating the negative impact of the concentration on the market competition, which may be either structural (for example, divestitures) or behavioural (for example, restrictions on use or management of certain assets or price increases).
Under the Competition Law, in case during the Phase II review the AMC sees any grounds for a merger to be prohibited, it shall inform the parties of these grounds and the parties, in turn, can propose remedies to the AMC within a 30-day period (extendable upon the parties’ request). Practically, this means that discussions on remedies start at Phase II. Still, offering remedies at Phase I is not prohibited; however, it will most probably automatically bring the case to Phase II, as Phase I review implies the absence of any substantive competition concerns. So, initiation of discussions on remedies with the authority is very unlikely to help avoid Phase II investigation.
In practice, remedies in most cases are behavioural and conditional clearances often include reporting requirements allowing the authority to monitor compliance.
There are no uniform conditions. The only relevant requirements are that remedies should alleviate competition concerns, be proportionate and supervision of their implementation should be reasonable.
During the past five years or so, the AMC cleared transactions subject to binding commitments in approximately 2 per cent of cases. As not all the AMC’s decisions are publicly available (the AMC started publishing its decisions only since mid July 2015), its practices in this regard cannot be comprehensively reviewed.
Ancillary restraints are not covered by merger clearance and may require a separate clearance, for example antitrust clearance with respect to non-compete clauses.
The AMC may involve third parties (competitors, suppliers and consumers, experts, etc) in the merger case review process if the AMC’s decision on the notified transaction may significantly affect rights and interests in competition. Third parties may be involved during Phase II. The AMC acts in its full discretion when deciding on the issue; the respective decision is then communicated to the notifying parties.
Third parties can submit their observations, in particular, relating to the notified transaction and its impact on the market. Such observations are then attached to the case as evidence and must be taken into account when the AMC decides on the case. The AMC may request information, documents or opinions from the third parties if it considers such data relevant and necessary for the case assessment. Normally, when issuing such an information or documents request, the authority will indicate the deadlines for provision of the requested data. Non-compliance with a request may result in sanctions for a third party.
Automatic confidentiality does not apply to any information. Confidentiality may be available to the parties on their request. The parties shall provide a grounded justification when applying for the confidentiality, as well as a non-confidential version of the information. If not satisfactorily justified, the parties’ confidentiality request will be rejected by the AMC.
The AMC is required to publish short notes regarding its resolutions on the initiation of Phase II review, and non-confidential versions of its decisions in merger and concerted practice applications or cases, as well as decisions in cases on competition law violations within 10 working days of the adoption of the resolution or decision.
Currently, the AMC publishes on its website a short note of the resolution or decision made (with the identity of the parties and the essence of the resolution or decision); notes on decisions are then followed by publication of their non-confidential versions.
Cooperation of the AMC with other competition authorities is usually based on bilateral treaties (Ukraine has entered into cooperation agreements, inter alia, with Bulgaria, Hungary, Latvia, Lithuania and Slovakia).
The AMC also cooperates with international organisations, such as the Organisation for Economic Co-operation and Development, the United Nations Conference on Trade and Development and the International Competition Network.
If the AMC prohibits the concentration, the CMU may still grant a clearance if its positive effects for the public interest outweigh the negative impact of the restriction of competition, unless that restriction is not necessary for achieving the purpose of the concentration or jeopardises the market economy system. Still, there are no publicly available cases of CMU granting clearance for the concentration that was prohibited by the AMC.
The AMC’s decisions can also be challenged in commercial courts. The relevant statement of claim indicating the grounds for invalidation of the AMC decision should be filed to a commercial court within two months from the date of receipt of the decision.
Courts’ decisions may further be appealed to the competent appellate instance within a 20-day period. Further, if the appeal is unsuccessful, the claimant may go to higher cassation court - the Supreme Court of Ukraine (the cassation commercial court).
Because there have been very few AMC prohibition decisions and in each of these cases the authority has thoroughly and deliberately assessed the facts and the potential impact of the transaction on the relevant markets, there have been no instances of successful appeals in merger cases (although not all court decisions are publicly available). Further, there is no public record of successful appeals against the AMC clearance decisions.
Nevertheless, there have been several notable appeal cases (including with respect to the AMC clearance decision in the Procter & Gamble/Olvia Beta Cleaning Products assets case) with the definition of the relevant product market as the central and most disputable issue.
Decisions of the AMC can be appealed to the commercial courts within two months upon the receipt of the decision. The new procedural rules governing the review of the case in commercial courts entered into force in late 2017. Now, the consideration of cases in the first instance may last:
There is still a lack of practice concerning how these new terms are met by the courts. Under the previous rules, such terms were rarely met because of the courts’ heavy workload, insufficient personnel, the necessity of conducting additional investigations, collection of documents and information, etc.
According to the AMC’s statistics, in 2017 the AMC reviewed 666 merger notifications.
Of these applications, 602 (90 per cent) were cleared and 64 were rejected by the AMC or withdrawn by the parties. The vast majority of applications did not raise competition concerns and were cleared within Phase I; Phase II investigations were initiated in 11 cases (approximately 1.5 per cent of the overall number of applications submitted to the AMC).
Current proposals for merger control reform concern the following:
Besides that, the following issues may evolve in the near future:
The key policy developments concern the following.
Law on Sanctions
In November 2017, the Parliament of Ukraine amended the Competition Law to deal with notifications by the sanctioned (Russia-related) parties (in force from December 2017). Pursuant to the amended law, the AMC will reject notifications or drop their review (if such notifications have already progressed into Phase I or II) if the concentration is prohibited by the Law on Sanctions. The AMC also published guidelines on the issue: the new rules will apply if any of the parties to the concentration (or any individuals or entities connected to them by relations of control) is on the Ukrainian sanctions list; and a particular type of sanctions applies to a given individual or entity (eg, prohibition on disposal of assets, equity, etc). Under adverse interpretation, the new rules may apply on a group-wide basis (unlike many of the sanctions themselves) (ie, where a party is not on the list itself, but belongs to a group controlled by or controlling the sanctioned individuals or entities).
Non-Horizontal Merger Guidelines
In 2017, the AMC launched public consultations on the draft Non-Horizontal Merger Guidelines. The relevant document was adopted by the authority in early 2018. It is largely modelled after the EU Non-Horizontal Merger Guidelines and will complement the existing Guidelines on Horizontal Mergers.