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Merger control in Ukraine
Author: Igor Svechkar, Alexey Pustovit
Source: Lexology. – 3 декабря 2018
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Trends and climate

How would you describe the current merger control climate, including any trends in particular industry sectors?

Asters

After Ukraine signed the Association Agreement in 2014, the merger control regime has become a priority in the creation of a more favourable investment climate in the country. Over the past three years, Ukrainian merger control legislation has been updated significantly to comply with the European standards provided by the Association Agreement. The most important changes are outlined below.

Amendments to the Law on the Protection of Economic Competition (Competition Law) 

In May 2016 the new law reforming the merger control regime came into force. The most notable changes introduced by the new law included:

  • the remodelling of notifiability thresholds – the merger thresholds were increased and revised, although some transactions without a nexus are still captured (eg, where only the seller has Ukrainian turnover or assets);
  • the introduction of a fast-track review procedure – transactions raising no competition concerns (eg, where only one party is active in Ukraine or parties' combined shares do not exceed certain thresholds) are reviewed in 25 days;
  • the introduction of formal consultations with the Anti-monopoly Committee of Ukraine (AMC); however, these do not apply at the pre-filing stage (although the AMC is generally available for brief unofficial discussions regarding the notifiability of a proposed transaction or technical issues relating to a future notification); and
  • an increase of the filing fee amount.

Amendments to Procedural Rules (the Concentrations Regulation)

In August 2016 the AMC revised its procedural rules on merger notifications. The new Concentrations Regulation significantly reduces disclosure requirements and simplified filing forms, especially for mergers with no or limited overlaps.

The most notable changes removed the requirement to provide:

  • detailed information on non-relevant markets – instead, the parties must give only a summary of such activities;
  • a list of all group subsidiaries – now, only Ukrainian subsidiaries and those with Ukrainian turnover need to be listed;
  • a list of minority shareholdings;
  • detailed information on the officers, directors and relatives; and
  • some of the documents previously filed alongside the notification.

However, more detailed information is required on the financing of notified transactions and the filing companies' ownership structure. Further, to obtain clearance for transactions that could raise competition concerns, the filling parties must provide more extensive and substantiated explanations based on economic analysis.

Transparency

In March 2016 the law on ensuring the transparency of AMC activity came into force. The law provides for the publication of:

  • short notes regarding the AMC’s resolutions on the initiation of Phase II in merger or concerted practice cases;
  • non-confidential versions of the AMC’s decisions on or in merger or concerted practice applications and cases; and
  • decisions in cases on competition law violations.

These documents must be published within 10 working days of the adoption of the resolution or decision.

Review of fining policy

In August 2016 the AMC revised its Guidelines on the Calculation of Fines. Although the guidelines are non-binding, the AMC has publicly committed to follow them strictly and does so in practice. The guidelines set the basic amounts of fines for the violation of competition law, including in merger cases.

Assessment of horizontal and non-horizontal mergers

The AMC adopted the Guidelines on the Assessment of Horizontal Mergers and the Guidelines on the Assessment of Non-horizontal Mergers in December 2016 and March 2018, respectively. Both documents are modelled on the relevant EU guidelines and provide general rules and the procedure of review for different types of concentration.

Law on Sanctions

In November 2017 Parliament amended the Competition Law to deal with notifications by sanctioned (Russia-related) parties (in force from December 2017). Pursuant to the amended law, the AMC will reject notifications or drop its review (if such notifications have already progressed to Phases I or II) if the concentration is prohibited by the Law on Sanctions. The AMC also published guidelines on the issue, stating that 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) are on the Ukrainian sanctions list; and
  • a particular type of sanction applies to a given individual or entity (eg, the prohibition on the disposal of assets or equity).

Under adverse interpretation, the new rules may apply on a group-wide basis (unlike many of the sanctions themselves) – for example, where a party is not on the list but belongs to a group controlled by or controlling the sanctioned individuals or entities.

Guidelines on definition of control 

In November 2018 the AMC adopted the Guidelines on the Definition of Control. The document is not legally binding, but provides comprehensive guidance on how the AMC will treat different transaction structures and explains rules applicable to specific deals. In general, the guidelines provide for a concept of control that is similar to that under EU competition law and closely follow  the EU Consolidated Jurisdictional Notice.

The key points of the guidelines are as follows:

  • The AMC:
    • distinguishes between negative and positive sole control;
    • recognises the difference between de jure and de facto types of sole control; and
    • clarifies which veto rights may be treated as granting control.
  • The AMC further explains that change in the quality of control occurs in situations where there is:
    • a change from sole to joint control or vice versa; or
    • an increase in the number or a change in the identity of controlling shareholders.

No changes in the quality of control arise in case of a switch from negative to positive sole control or changes in the level of shareholdings of the same controlling shareholders, provided that their powers remain the same.

Are there are any proposals to reform or amend the existing merger control regime?

Asters

Current proposals to change the existing merger control regime are as follows:

  • Calculation of fines in merger cases – according to the AMC, the committee plans to further revise the existing Guidelines on the Calculation of Fines. Moreover, the draft law on the calculation of fines is pending approval by Parliament. The draft law aims to:
    • make the Guidelines on the Calculation of Fines binding on the AMC; and
    • empower the courts to annul the AMC's decisions on fines or obligations imposed on the parties and to order the AMC to reconsider cases in this regard.
  • Definition of the relevant market – the AMC is working on the draft Methodology on the Market Definition in order to improve its rules on defining the relevant market. The document is due to be finalised by late 2018.
  • Amendments to the simplified procedure – draft amendments to the Competition Law suggest applying a 25-day simplified procedure to transactions where:
    • none of the parties to the concentration are engaged in business activities regarding the same product and geographical market (ie, no horizontal overlaps) or in a product market that is upstream or downstream from the product market in which the other party to the concentration engages (ie, no vertical overlaps); or
    • the parties submit voluntary filings (ie, where the concentration is below the thresholds).
    • Increased filing fees – draft amendments to the Competition Law suggest increasing filing fees for the submission of notifications that do not qualify for review under the simplified procedure from UAH20,400 (approximately €630) to UAH40,800 (approximately €1,200). The filing fee for notifications under the simplified procedure (UAH20,400) is not expected to change.
    • Amendments to enforcement rules – another draft amendment to the Competition Law suggests changing the enforcement rules by:
    • abolishing penalty accruals for the late payment (ie, non-payment) of a fine;
    • introducing a 50% discount if the fine is paid within one month of receipt of the decision; and
    • empowering the AMC to issue enforcement orders for the recovery of the fine by the Enforcement Service (at present, court action is required).

The following issues may also be raised in 2018 or early 2019:

  • Target group composition – at present, the target must disclose  detailed information on the controlling seller(s) in the notification, although the control link to these sellers may be lost post-closing. This approach often places an unjustified burden on the notifying parties.
  • Calculation of the target assets and turnover – at present, the assets and turnover of the controlling seller(s) must be counted towards those of the target, although the control link may be lost after closing. Therefore, the notification requirements are often met only formalistically by the sellers that will cease to control the target post-closing, rather than by the target.
  • Ancillary restraints – at present, ancillary restraints such as non-compete obligations accompanying a merger are often formalistically regarded as separate notifiable events (so-called ‘concerted practices’) requiring a separate clearance.

Legislation, triggers and thresholds

What legislation applies to the control of mergers?

Asters

The applicable merger control legislation includes:

  • the Law on the Protection of Economic Competition 2001 (the Competition Law);
  • the Law on the AMC 1993;
  • the Resolution Approving the Regulation on the Procedure for Filing Applications with the AMC for Obtaining its Prior Approval of the Concentration of Undertakings 2002 (the Concentrations Regulation);
  • the Methodology for the Establishment of the Monopoly (Dominant) Position of the Undertakings on the Market 2002;
  • the Guidelines on the Calculation of Fines for Violation of Ukrainian Competition Law 2016 (the Guidelines on the Calculation of Fines);
  • the Guidelines on the Assessment of Horizontal Mergers 2016;
  • the Guidelines on the Assessment of Non-horizontal Mergers 2018; and
  • the Guidelines on the Definition of Control 2018.

What is the relevant authority?

Asters

The AMC is the primary state authority entrusted with ensuring the protection of competition. The committee has powers to investigate and grant or refuse clearance for concentrations. If the AMC refuses to approve a concentration, the Cabinet of Ministers may overrule the decision.

Under what circumstances is a transaction caught by the legislation?

Asters

The Competition Law uses the term ‘concentrations’, broadly defined as covering:

  • the merger of two or more previously independent undertakings or the takeover of one undertaking by another;
  • the establishment by two or more undertakings of a new undertaking that will independently pursue business activities on a permanent basis and whose establishment does not result in the coordination of competitive behaviour between the parents or between the new undertaking and its parents;
  • the direct or indirect acquisition of shares, whereby certain thresholds (25% or 50% of the votes in the highest governing body of the undertaking concerned) are reached or exceeded; and
  • the acquisition of direct or indirect control over an undertaking, including through:
    • the acquisition or lease of a significant part of the assets of an undertaking (including through liquidation); or
    • appointments to certain roles (eg, chairperson, deputy chairperson or more than half of the members of the decision-making or supervisory corporate bodies).

The AMC requires separate notification for each step of a multi-stage transaction. In particular, an acquisition of joint control by two independent undertakings through a special purpose vehicle (SPV) normally requires two separate clearances: one for the joint establishment of a purely technical SPV (even where the SPV is a new company incorporated with the sole purpose of participating in a bidding process) and one for the acquisition of the target. Depending on its structure, the deal may involve other triggering events that require additional clearance.

The same complexity applies to multiple acquisitions. For example, in deals involving the direct acquisition of shares in a number of entities by one undertaking from the same (ultimate) seller, the AMC clears each acquisition through separate clearance decisions.

Regarding the acquisition of control provision, although the Competition Law provides only two examples of notifiable transactions, it is a catch-all provision intended to cover acquisitions with respect to any kind of control. Control is established through rights, contracts or any other means that confer the possibility of exercising decisive influence on the target. The recently adopted Guidelines on the Definition of Control further clarify how the concept of control and changes in the quality of control are treated by the AMC.

Exemptions

The following transactions do not qualify as concentrations under the Competition Law and no merger clearance is required, irrespective of the parties' turnover or the value of their assets:

  • the establishment of a new undertaking aimed at, or which results in, the coordination of competitive behaviour between the parents or between the new undertaking and its parents – this is generally regarded as a concerted practice and may require antitrust clearance;
  • the acquisition of shares qualifying as a financial buyer transaction – for example, where shares are acquired by a financial institution for the purposes of further resale within one year (extendable), provided that the acquirer does not exercise voting rights attached to the acquired shares;
  • the acquisition of control over an undertaking or part thereof by a receiver or a representative of a state authority (eg, through an insolvency procedure); and
  • intra-group transactions, provided that control links within the group have been established in compliance with Ukrainian merger control rules.

Do thresholds apply to determine when a transaction is caught by the legislation?

Asters

A transaction that qualifies as a concentration requires merger clearance by the AMC if:

  • the combined parties' worldwide value of assets or turnover exceeds €30 million and the value of assets in Ukraine or Ukrainian turnover of each of at least two parties exceeds €4 million; or
  • the value of assets in Ukraine or the Ukrainian turnover of the target (including its controlling shareholder or seller group) or of at least one of the founders of a new entity exceeds €8 million and worldwide turnover of at least one other party exceeds €150 million.

All figures are calculated for the financial year immediately preceding the year of the concentration on a group-wide basis.

The following special rules are applicable to the calculation of thresholds for banking companies and insurers:

  • For banking companies, one-tenth of the bank's assets should be considered for the purposes of the turnover or asset threshold.
  • For insurers, the net assets of the insurer should be considered for the purposes of the asset threshold and the revenues from insurance activities should be considered for the purposes of the turnover threshold.

Is it possible to seek informal guidance from the authority on a possible merger from either a jurisdictional or a substantive perspective?

Asters

Under the Competition Law, the parties may initiate consultations with the AMC during an initial 15-day review period with respect to documents and information required for review of the application for approval of a concentration, including the possibility of a simplified procedure and the elimination of minor faults in the application. However, the law does not envisage the possibility of preliminary consultations taking place before notification (such consultations are available only to applicants and thus only after notification). Informal discussions with the AMC's officers are possible, although the law does not expressly provide for them.

The parties may also refer to the AMC for formal guidance (ie, a non-binding preliminary opinion) on the notifiability of a concentration and whether clearance is likely to be granted. The review period for a preliminary opinion application is up to 30 calendar days. There is no prescribed form of the preliminary opinion application, but the data and documents that must be filed with the AMC are roughly the same as those required for a merger clearance notification.

The fee for a preliminary opinion application is UAH5,440 (approximately €170). Obtaining a preliminary opinion does not release the parties from having to apply to the AMC for a merger clearance, if required.

Are foreign-to-foreign mergers caught by the regime? Is a ‘local impact’ test applicable under the legislation?

Asters

An obligation to notify arises if the parties meet 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.

Pursuant to the Competition Law, the application of the turnover or asset thresholds should arguably be qualified by the effects doctrine, under which clearance is not required if the transaction lacks reasonable local nexus and cannot have an anti-competitive effect. However, this argument contradicts the current approach of the AMC in the application of merger control rules.

What types of joint venture are caught by the legislation?

Asters

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 the establishment results in the coordination of competitive behaviour between either of the parents or between the new undertaking and its parents. In the latter case, a coordinative joint venture is generally regarded as concerted practice and may require a separate antitrust (as opposed to a merger) clearance.

To be notifiable under the merger control rules, a joint venture should perform economic activities on a lasting basis; however, in practice the AMC considers merely the state registration of a new legal entity by two undertakings to be a notifiable event (without taking into account the terms of a joint venture, its production plans and actual start of business). For this reason, there have been numerous merger clearances in Ukraine for non-full function joint ventures and penalties for failure to notify them.

Notification

Is the notification process voluntary or mandatory?

Asters

Mandatory.

What timing requirements apply when filing a notification?

Asters

There are no deadlines for filing notifications in Ukraine. The only requirement is that Anti-monopoly Committee of Ukraine (AMC) clearance be obtained before the implementation of the concentration. It is even possible to file notification of a transaction in the early stages, when no definitive agreement has been reached.

What form should the notification take? What content is required?

Asters

The Concentrations Regulation sets short and full-form notifications for simplified and standard review procedures, respectively. The parties must also submit electronic versions of the notification and all documents attached to it on CD.

Short form notifications must include:

  • a description of the transaction structure, indicating transaction stages and the timeline for their implementation, as well as a draft or copy of the transactional documents;
  • information if the clearance is sought or granted in other jurisdictions;
  • a description of the source of financing, indicating terms and conditions, as well as documents to confirm the availability of funds (eg, a balance sheet or an excerpt from a bank account) or to evidence that a financial institution lending funds will not acquire control over the borrower as a result of the financing arrangement (eg, a loan agreement);
  • the parties’ asset and turnover data, globally and in Ukraine, for the previous financial year;
  • information on the parties’ ultimate beneficiary owners (if any);
  • a general outline of the parties’ activities in all markets, globally and in Ukraine, indicating Ukrainian subsidiaries and companies active in Ukraine; and
  • value and volume-based sales and market share data for the relevant markets, indicating competitors and their estimated market shares in overlapping markets.

In addition to the documents and information required under the short-form notification, full-form notifications must include:

  • a detailed economic analysis of the transaction’s effect on the Ukrainian market (similar to Form CO under the EU Merger Regulation); and
  • the parties’ excerpts from the trade register or similar (in notarised and apostilled or legalised hardcopies).

Is there a pre-notification process before formal notification, and if so, what does this involve?

Asters

There is no pre-notification process. However, AMC officials are usually available for brief unofficial discussions regarding the notifiability of a proposed transaction or technical issues relating to a future notification.

Can a merger be implemented before clearance is obtained?

Asters

The parties are subject to a stand-still obligation. Closing without or before clearance constitutes a violation of merger control law.

What guidance is available from the authorities?

Asters

The parties to a transaction may refer to the AMC for formal guidance (ie, a non-binding preliminary opinion) on whether the concentration is notifiable and whether clearance is likely to be granted or refused. Obtaining a preliminary opinion does not release the parties from having to apply to the AMC for merger clearance (if required).

Once the merger control notification is filed, the parties may initiate consultations with the AMC during an initial 15-day review period with respect to documents and information required for review of the application, including the possibility of a simplified procedure and the elimination of minor faults in the application. However, the law does not envisage the possibility of preliminary consultations taking place before notification (such consultations are available only to applicants and thus only after notification). Informal discussions with AMC officers are usually possible at any stage; in complex cases, it is customary to have meetings with the AMC and seek advice on remedies. Individual derogations are not possible.

What fees are payable to the authority for filing a notification?

Asters

The obligatory filing fee is UAH20,400 (approximately €630) per notification. There may be multiple notifications depending on the transaction structure; in this case, multiple filing fees must be paid.

What provisions apply regarding publicity and confidentiality?

Asters

Automatic confidentiality does not apply to information submitted by the parties and may be available on their request. When applying for confidentiality, the parties should provide a grounded justification, as well as a non-confidential version of the information. If the confidentiality request is not satisfactorily justified, it will be rejected by the AMC.

Following changes to the Competition Law that came into effect in March 2016, the AMC is obliged to publish non-confidential versions of clearances within 10 working days of the decision being made. For merger clearances, the scope of disclosure normally covers:

  • the essence of the transaction;
  • the identity of the parties; and
  • a brief description of their activities at group level in Ukraine and worldwide.

The scope of disclosure can be pre-negotiated by the parties. They can claim for extra confidentiality by submitting a reasoned motion to refrain from disclosing sensitive data.

Are there any penalties for failing to notify a merger?

Asters

The statutory maximum fine for implementing a notifiable transaction before or without obtaining AMC clearance is up to 5% of the group's consolidated worldwide turnover for the year immediately preceding that in which the fine is imposed.

In practice, fines in merger cases are considerably lower and are calculated based on the Guidelines on the Calculation of Fines amended and revised by the AMC in August 2016. Although the guidelines are non-binding, the AMC has publicly committed to follow them strictly and does so in practice. The document sets the basic amounts of fines for the violation of competition law, including in merger cases, and clarifies that the maximum theoretical fine (5% of the group's consolidated worldwide turnover) can now be imposed in exceptional circumstances to ensure deterrence. Other cases can be split into the following groups:

  • 10% of the turnover in the relevant (and adjacent) market for failure to notify a concentration, which results in the monopolisation or substantial restriction of competition;
  • between UAH510,000 (approximately €15,900) and 5% of the turnover in the relevant (and adjacent) market for failure to notify a concentration, which does not lead to the monopolisation or significant restriction of competition, nor has an effect on Ukrainian product markets; and
  • between UAH170,000 (approximately €5,300) and UAH510,000 (approximately €15,900) for failure to notify a concentration where the parties are active in non-overlapping and non-adjacent markets in Ukraine.

Fines imposed under the first two groups may be multiplied for aggravating or mitigating coefficients (ie, depending on the effect of the violation on competition, the profitability of economic activity connected with the violation and the nature of goods produced in the relevant market).

In addition, in each case, the fines may be doubled for repeat offences and further increased by up to 50% for aggravating factors (eg, refusal to cooperate and obstructing a case investigation) or reduced by up to 50% for mitigating factors (eg, cooperation with the AMC during the case investigation, voluntarily filing a corrective merger application and pleading guilty). The Guidelines on the Calculation of Fines do not clarify how much of a decrease each of these circumstances provides, but the AMC applies them in practice.

The statute of limitations for imposing a fine for an unauthorised merger is five years. The lapse of the limitation period exempts offenders from fines, but the legal status of the transaction remains questionable. This creates uncertainty for intra-group deals involving so-called ‘uncleared’ companies (including routine restructurings), as the intra-group exemption is conditional on compliance with the merger control requirements at the moment of the incorporation or acquisition of the respective companies.

Procedure and test

What procedures are followed by the authority? What is the timetable for the merger investigation?

Asters

The standard merger review procedure includes the following steps:

  • Preview period – the Anti-monopoly Committee of Ukraine (AMC) has 15 days to decide whether the notification is complete and can be forwarded for substantive review (ie, Phase I). If the AMC considers the notification to be incomplete, it will be rejected. The parties then have the right to resubmit it.
  • Phase I review – this stage involves the AMC’s substantive review and assessment of whether the concentration can be approved or whether there are potential grounds to prohibit it (in which case, Phase II is initiated). The assessment must be completed within 30 days of the acceptance of the notification for substantive review. During this period, the AMC will either issue the clearance or initiate Phase II.
  • Phase II review – this involves a close analysis of the transaction and the associated competition concerns, as well as the examination of expert opinions and other additional information. In practice, the Phase II review period is limited to 135 days starting from the day on which Phase II notice is sent to the parties. During this period, the AMC will either issue the clearance (conditional or unconditional) or adopt a decision prohibiting the concentration.

If the AMC has failed to adopt a decision on the concentration before Phase I or Phase II expires, it is deemed to have been granted clearance by tacit consent. However, the AMC does not normally clear by tacit consent.

The Competition Law also provides for a fast-track simplified 25-day review procedure for transactions where:

  • only one party is active in Ukraine; or
  • the parties' combined shares do not exceed 15% in the overlapping markets or 20% in vertically-related markets.

The AMC tends to interpret the 15% or 20% threshold restrictively and irrespective of whether an overlap occurs in a relevant or non-relevant market.

The validity of an AMC clearance is time-limited. For merger clearance, the standard duration is one year, unless stated otherwise in the clearance. The duration can be longer subject to the reasoned motion from the parties; however, the AMC is not obliged to justify it and rarely does so in practice. The law does not provide for the possibility to prolong the validity period of the granted clearances, meaning that where closing occurs after the lapse of the one-year period, the parties must file a new merger application (unless the deal does not require the clearance under merger thresholds).

What obligations are imposed on the parties during the process?

Asters

The AMC may revert to the parties with additional questions or requests, normally informally (ie, no written requests). It is established practice to respond to such requests.

What role can third parties play in the process?

Asters

Third parties (eg, competitors and customers of the notifying parties) can be involved during the Phase II review. As of March 2016 the AMC must disclose the opening Phase II on its website, thus inviting all interested parties to provide their comments or objections with regard to the effect of a concentration on the market. Third parties may submit their observations 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.

Moreover, the AMC may reach out to third parties directly by sending them written information requests where it considers such data relevant and necessary for the case assessment. Normally, when issuing such information and document requests, the AMC indicates a deadline for the provision of the requested data. Non-compliance with the information or document request may result in the imposition of penalties on the third party.

What is the substantive test applied by the authority?

Asters

The AMC will approve a concentration if it does not lead to the monopolisation (ie, the achievement or strengthening of a dominant position in the market) or the substantial restriction of competition in the Ukrainian market or a significant part thereof. If the AMC finds any grounds for a concentration to be prohibited, it will inform the parties of these grounds and the parties in turn can propose remedies to the AMC within a 30-day period (extendable on the parties' request).

The test for dominance is:

  • more than 35% of the market share, if held individually;
  • more than 50% of the market share, if held collectively by two or three undertakings with the largest market shares; or
  • more than 70% of the market share, if held collectively by four or five undertakings with the largest market shares.

Each transaction is assessed on a case-by-case basis and the market shares are the primary proxy for the dominance test. The AMC applies its Guidelines on the Assessment of Horizontal Mergers and recently adopted Guidelines on the Assessment of Non-horizontal Mergers to analyse the possible unilateral or coordinated effects of the transaction, as well as countervailing factors (eg, buyer power, market entry and the 'failing firm' defence).

Does the legislation allow carve-out agreements in order to avoid delaying the global closing?

Asters

The stand-still obligation for notifying parties applies globally and Ukrainian merger control law does not provide for the possibility to obtain individual derogation or to avoid penalties through respective carve-out or hold-separate arrangements.

In practice, the AMC may accept a hold-separate or carve-out arrangement as a mitigating factor when deciding on the amount of a fine, as such agreements show the parties' good-faith intent to comply with Ukrainian merger control law.

Is a special substantive test applied for joint ventures?

Asters

No special substantive test is applied for joint ventures.

Remedies

What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.

Asters

The Anti-monopoly Committee of Ukraine (AMC) can make a clearance decision conditional on the parties' undertaking to perform – or refraining from performing – certain actions aimed at removing or mitigating the negative impact of the concentration on market competition, which may be structural (eg, divestitures) or behavioural (eg, restrictions on the use or management of certain assets or price increases).

In practice, remedies applied by the AMC are usually behavioural and conditional clearances often include reporting requirements allowing the authority to better monitor compliance with the remedies.

If the AMC finds any grounds for a merger to be prohibited, it will inform the parties of these grounds and the parties in turn can propose remedies to the AMC within a 30-day period (extendable on the parties’ request). The AMC must also carry out consultations with the parties, in order to agree the terms and conditions of the remedies.

Appeals

Is there a right of appeal?

Asters

An Anti-monopoly Committee of Ukraine (AMC) decision can be appealed by the parties to the transaction or third parties within two months of receipt of the decision.

If the AMC prohibits the concentration, the Cabinet of Ministers may still grant clearance if the positive effects are in the public interest and outweigh the negative impact of the restriction to competition, unless that restriction is unnecessary to achieve the purpose of the concentration or jeopardises the market economy system.

Do third parties have a right of appeal?

Asters

Third parties can appeal the AMC's decisions.

What is the  for any appeal?

Asters

An AMC decision can be appealed by the parties to the transaction or third parties within two months of receipt of the decision.

Law stated date

Please state the date as of which the law stated here is accurate.

Asters

The law stated here is accurate as of November 2018.