How would you describe the current merger control climate, including any trends in particular industry sectors?
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.
In May 2016 the new law reforming the merger control regime came into force. The most notable changes introduced by the new law included:
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:
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.
In March 2016 the law on ensuring the transparency of AMC activity came into force. The law provides for the publication of:
These documents must be published within 10 working days of the adoption of the resolution or decision.
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.
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.
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:
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.
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:
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?
Current proposals to change the existing merger control regime are as follows:
The following issues may also be raised in 2018 or early 2019:
What legislation applies to the control of mergers?
The applicable merger control legislation includes:
What is the relevant authority?
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?
The Competition Law uses the term ‘concentrations’, broadly defined as covering:
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.
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:
Do thresholds apply to determine when a transaction is caught by the legislation?
A transaction that qualifies as a concentration requires merger clearance by the AMC if:
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:
Is it possible to seek informal guidance from the authority on a possible merger from either a jurisdictional or a substantive perspective?
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?
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?
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.
Is the notification process voluntary or mandatory?
What timing requirements apply when filing a notification?
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?
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:
In addition to the documents and information required under the short-form notification, full-form notifications must include:
Is there a pre-notification process before formal notification, and if so, what does this involve?
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?
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?
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?
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?
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 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?
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:
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.
What procedures are followed by the authority? What is the timetable for the merger investigation?
The standard merger review procedure includes the following steps:
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:
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?
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?
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?
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:
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?
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?
No special substantive test is applied for joint ventures.
What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.
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.
Is there a right of appeal?
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?
Third parties can appeal the AMC's decisions.
What is the for any appeal?
An AMC decision can be appealed by the parties to the transaction or third parties within two months of receipt of the decision.
Please state the date as of which the law stated here is accurate.
The law stated here is accurate as of November 2018.