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Merger control in Ukraine: overview
Author: Igor Svechkar, Oleksandr Voznyuk, Alexey Pustovit, Tetiana Vovk
Source: Thomson Reuters. – Practical Law, декабрь 2018
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Regulatory framework

1. What (if any) merger control rules apply to mergers and acquisitions in your jurisdiction? What is the regulatory authority?

Regulatory framework

Mergers and acquisitions, as well as establishment of an undertaking and appointments to corporate positions under certain circumstances, are subject to merger control in Ukraine.

Applicable laws and regulations include the:

  • Law on Protection of Economic Competition 2001 (Competition Law).
  • Law on the Antimonopoly Committee of Ukraine 1993 (AMC Law).
  • Commercial Code of Ukraine 2003.
  • Regulation on the Procedure for Filing Applications with the Antimonopoly Committee of Ukraine for Obtaining its Prior Approval of the Concentration of Undertakings 2002 (Concentrations Regulation).
  • Methodology for Assessment of the Monopoly (Dominant) Position of Undertakings on the Market 2002.
  • Guidelines on Calculation of Fines for Ukrainian Competition Law Violations 2016 (Guidelines on Fines).
  • Guidelines on the Assessment of Horizontal Mergers 2016.
  • Guidelines on the Assessment of Non-Horizontal Mergers 2018.
  • Guidelines on Definition of Control 2018.

Regulatory authority

The Antimonopoly Committee of Ukraine (AMC) is the primary state authority entrusted with ensuring protection of competition. In particular, it has powers to review transactions and grant or refuse clearance for mergers (concentrations). If the AMC refuses to approve a concentration, the Cabinet of Ministers of Ukraine may overrule that decision on public interest considerations (see Question 7).

See box, The regulatory authority.

Triggering events/thresholds

2. What are the relevant jurisdictional triggering events/thresholds?

Triggering events

The Competition Law sets out the exhaustive list of transactions/events that are considered concentrations and may require prior merger clearance:

  • Merger or takeover of one undertaking by another.
  • Acquisition of direct or indirect control over an undertaking (including through the acquisition of a significant part of its assets, appointment to management positions and so on).
  • Establishment by two or more undertakings of a new undertaking that will independently pursue business activity on a lasting basis and its establishment will not result in co-ordination of competitive behaviour of either:
    • its parents;
    • the new undertaking, on the one hand, and its parents, on the other.
  • Direct or indirect acquisition(s) of participation interests (shares, equity), whether controlling or non-controlling, where certain thresholds (25% or 50% of the votes in the highest governing body of the undertaking concerned) are reached or exceeded.

Ukrainian merger control rules define control as 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:

  • Directly or indirectly holds or manages more than 50% of shares or votes in another undertaking.
  • Is entitled to receive at least 50% of profit in another undertaking.
  • Is authorised to appoint CEO, deputy CEO or more than 50% of the members of another undertaking's corporate bodies (or if the same persons hold positions of CEO, deputy CEO, the Chairman, the Deputy Chairman or more than 50% of members of said boards or committees in two undertakings).
  • Otherwise controls another undertaking (through contractual arrangements, for example, management or joint activity).

The following are not considered concentrations:

  • Establishment of a new undertaking aiming at or resulting in co-ordination of competitive behaviour of either its parents or of the new undertaking and its parents. This kind of establishment is generally regarded as a concerted practice and may require a separate antitrust clearance.
  • Acquisition of shares qualifying as a financial buyer transaction (that is, 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).
  • Intra-group transactions, unless control links within the group were established in violation of the Ukrainian merger control rules.
  • Acquisition of control over an undertaking or a part of an undertaking by a receiver or a representative of the state authority.

The limitation period for the authority to take action in relation to mergers is five years from closing.

Thresholds

A concentration is notifiable and requires prior approval by the AMC if in the financial year immediately preceding the year of the concentration either of the following thresholds is met:

  • The combined worldwide value of assets or turnover of the parties to the concentration (for the purposes of this test the parties are considered as part of their corporate group) exceeds EUR30 million and the value of Ukrainian assets or turnover of each of at least two parties exceeds EUR4 million.
  • The value of Ukrainian assets or turnover of the target group (including the controlling parent(s)) or of at least one of the founders of a new entity exceeds EUR8 million and worldwide turnover of at least one other party exceeded EUR150 million.

Turnover or assets figures of non-controlling interests are not taken into consideration when determining the turnover or assets for the purpose of thresholds calculation.

Special rules apply to the calculation of thresholds for banking and insurance companies, as follows:

  • Banking companies. One tenth of the bank's assets must be considered for the purposes of turnover/asset threshold.
  • Insurance companies. The net assets of an insurance company must be considered for the purposes of the asset threshold, and the revenues from insurance activities must be considered for the purposes of the turnover threshold.

Even if a transaction falls below the thresholds, the parties can still apply for clearance on a precautionary basis.

Notification

3. What are the notification requirements for mergers?

Mandatory or voluntary

The parties to the concentration must obtain the AMC's approval of the notifiable concentration before closing (see Question 2).

Timing

The law does not set any specific deadlines for filing a notifiable concentration. The only requirement is that AMC approval is obtained before closing. The exception is made for a case of a tender/bid process where a notifiable concentration should be filed within 30 days after a winner of a tender/bid is announced (this obligation was designed for Ukrainian privatisation procedures and may not be adaptable to public bids abroad).

Pre-notification and formal/informal guidance

Parties to a transaction may refer to the AMC for formal guidance (in the form of a non-binding preliminary opinion) on whether the concentration is notifiable, or whether the clearance is likely to be granted or refused.

The law does not provide for formal pre-filing consultations although informal pre-filing discussions are usually possible. The parties can request formal consultations with the AMC during the 15-day preview period (see Question 4).

Responsibility for notification

The parties to a transaction are jointly responsible for notifying. However, the AMC may agree to accept a notification filed by one of the parties in the following circumstances:

  • Hostile takeovers.
  • If there is a lack of co-operation between the parties (however, the AMC is rather reluctant to accept notifications filed by one of the parties with reference to this circumstance).

Relevant authority

The AMC is the relevant authority. However, if the AMC prohibits a concentration, it may still be approved by the Cabinet of Ministers on public interest considerations (see Question 7).

Form of notification

The parties must submit a written notification with the contents and annexes required under the Concentrations Regulation. There is no prescribed form of notification. The parties must also submit electronic versions of the notification and all documents attached to it (on CD).

Filing fee

The filing fee is UAH20,400 (approximately EUR670) per one notifiable event (there may be multiple events depending on the transaction structure) to be paid by either party.

Obligation to suspend

The parties must suspend implementation of the transaction until the AMC clearance is granted. In addition, they must refrain from any actions that may restrict competition and make restoration of the initial state of affairs impossible (for example, through pre-clearance "gun-jumping"). This suspension requirement applies globally and the only exception to the rule concerns the tender/bid process (see Question 3).

Procedure and timetable

4. What are the applicable procedures and timetable?

The standard merger review procedure includes the following steps:

  • Preview period. The AMC has 15 calendar days to decide whether the notification is complete and can be forwarded for the substantive review (Phase I). If the AMC considers the notification incomplete, it is rejected and should be resubmitted.
  • Phase I review. This stage involves a substantive review and assessment by the AMC of whether the concentration can be approved or whether there are potential grounds to prohibit the concentration, in which case Phase II is initiated. The assessment must be completed within 30 calendar days following acceptance of the notification for substantive review. In practice, during this period the AMC will either issue the clearance or initiate Phase II.
  • Phase II review. Phase II review involves a close analysis of the transaction and the associated competition concerns, examination of expert opinions and other additional information. In practice, the Phase II review period is limited to 135 calendar days from the date the authority sends the notice regarding the initiation of Phase II to the parties.During Phase II, the AMC will either issue the clearance (either conditional or unconditional) or adopt a prohibitive decision.

If prior to or on the date when Phase I period 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, though the AMC does not normally clear by tacit consent.

The law also provides for the fast-track simplified 25-day review procedure for transactions where either:

  • Only one party is active in Ukraine.
  • The parties' combined shares do not exceed 15% on the overlapping markets or 20% on vertically related markets. The AMC tends to interpret these thresholds quite restrictively, irrespective of whether an overlap occurs on a relevant or non-relevant market.

For an overview of the notification process, see flowchart, Ukraine: merger notifications.

Publicity and confidentiality

5. How much information is made publicly available concerning merger inquiries? Is any information made automatically confidential and is confidentiality available on request?

Publicity

The AMC must publish non-confidential versions of the following documents on its website:

  • Decisions on merger and concerted practice applications and cases.
  • Decisions on violation of competition cases.
  • Notices on initiation of merger Phase II reviews, within ten working days of the decision/resolution.

Currently, the AMC also publishes on its website a short note of the decision/resolution made (with the identity of the parties and the outcome) followed by publication of the non-confidential version of the relevant decision/resolution (see below, Confidentiality on request).

Automatic confidentiality

Automatic confidentiality does not apply to any information.

Confidentiality on request

Confidentiality may be available to the parties on request. The parties must 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.

Rights of third parties

6. What rights (if any) do third parties have to make representations, access documents or be heard during the course of an investigation?

Representations

Third parties (for example, competitors and customers of the notifying parties) can be involved during the Phase II review if the notified transaction may significantly affect their rights and interests. The law is generally silent on whether and how third parties must show an interest in the transaction. The decision on their involvement is up to the discretion of the AMC. The law also does not distinguish between different classes of third parties with respect to the rights they have.

Document access

Third parties participating in an investigation have the right to access case materials, except for confidential information (see Question 5) and/or other information, disclosure of which may cause harm to the interests of the other parties involved or hinder further review of the case.

Be heard

Third parties can submit their observations relating to, among other things, the notified transaction and its impact on the market. The AMC must take these observations into account when deciding on the case.

Substantive test

7. What is the substantive test?

The AMC approves the concentration if it does not lead to monopolisation (creating or strengthening the party's monopoly/dominant position) or substantial restriction of competition on the Ukrainian market or a significant part of it. Otherwise, the transaction will be prohibited unless the parties offer sufficient remedies.

If the AMC identifies the grounds to prohibit the transaction, it opens Phase II investigation (see Question 4).

Ukrainian competition laws define monopolistic (dominant) position and set out the relevant benchmarks, which are:

  • Above 35% market share if held individually, unless it proves that effective competition exists on the market.
  • Above 50% if held collectively by not more than three largest undertakings (where each can be considered dominant), unless they prove that effective competition exists on the market.
  • Above 70% if held collectively by not more than five largest undertakings (where each can be considered dominant), unless they prove that effective competition exists on the market.

Each transaction is assessed on a case-by-case basis. Further, under the Guidelines on the Assessment of Horizontal Mergers and recently adopted Guidelines on the Assessment of Non-Horizontal Mergers, the AMC will investigate possible unilateral and/or co-ordinated effects of the transaction, as well as countervailing factors (such as buyer power, market entry, failing firm defence).

Even if the AMC prohibits the concentration, the Cabinet of Ministers may still permit it 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.
  • Jeopardises the market economy system.

8. What, if any, arguments can be used to counter competition issues (efficiencies, customer benefits)?

The Guidelines on the Assessment of Horizontal Mergers and the recently adopted Guidelines on the Assessment of Non-Horizontal Mergers clarify that the AMC will take the following countervailing factors into account:

  • Likelihood that buyer power would act as a countervailing factor.
  • Likelihood that entry would maintain effective competition on the relevant markets.
  • Conditions for a failing firm defence (see Question 9).

The AMC can also take account of the transaction's potential to contribute to modernisation and rationalisation of production, purchase or sales, technical and product standards, promotion of technical, technological or economic development and so on.

If the transaction poses serious competition concerns, adequate remedies will be required.

Other efficiencies (such as the positive effects of the transaction on the public interest that outweigh the negative impact of the restriction of competition caused by the transaction) are likely to be taken into account by the Cabinet of Ministers, which may authorise a transaction that has been prohibited by the AMC (see Question 7).

9. Is it possible for the merging parties to raise a failing/exiting firm defence?

According to the Guidelines on the Assessment of Horizontal Mergers and the recently adopted Guidelines on the Assessment of Non-Horizontal Mergers, the AMC can take into account a failing/exiting firm defence.

However, in cases posing serious competition concerns, adequate remedies are likely to be required.

Remedies, penalties and appeal

10. What remedies (commitments or undertakings) can be imposed as conditions of clearance to address competition concerns? At what stage of the procedure can they be offered and accepted?

The AMC clearance decision can be made conditional on the parties' undertaking to perform, or refrain from performing, certain actions aiming to remove or mitigate the negative impact of the concentration on the market competition, which may be either:

  • Structural (for example, divestitures).
  • Behavioural (for example, restrictions on use or management of certain assets or price increases).

If during a Phase II review, the AMC identifies grounds to prohibit the concentration, it must inform the parties of these grounds and allow them 30 days (with possible extension) for offering remedies to resolve the competition concerns identified by the AMC, and therefore obtain clearance for the transaction. The AMC must also carry out consultations with the parties to agree on the terms and conditions of the remedies.

There are no comprehensive guidelines regarding the requirements for remedies, the only relevant requirements are that:

  • Remedies must alleviate competition concerns.
  • Remedies must be proportionate.
  • Supervision of their implementation must be reasonable.
  • Therefore, remedies are usually negotiated with the AMC on a case-by-case basis.

11. What are the penalties for failing to comply with the merger control rules?

Failure to notify correctly

The statutory maximum fine for failure to notify is 5% of the company's turnover worldwide in the year immediately preceding the year when the fine is imposed.

The fine can be imposed on the entire corporate group of the company whose actions or omissions have led to violation of the Competition Law. This allows the AMC to fine immediately any local subsidiaries of the parties and improves the AMC's chances of successfully collecting fines.

In practice, the fines are considerably lower. The Guidelines on Fines set the following base fines in merger cases:

  • 10% of the turnover on the relevant (and adjacent) Ukrainian markets for failure to notify a concentration that resulted in monopolisation or substantial restriction of competition.
  • Between UAH510,000 (approximately EUR16,600) and 5% of the turnover on the relevant (and adjacent) Ukrainian markets for failure to notify a concentration that does not lead to monopolisation or significant restriction of competition and/or have impact on Ukrainian product markets.
  • Between UAH170,000 (approximately EUR5,600) and UAH510,000 for failure to notify a concentration if the parties are active on non-overlapping and non-adjacent markets in Ukraine.

When defining the "base" fine, the AMC can apply coefficients depending on the effect of the violation on competition, the social importance of the market involved, and profitability of the economic activity connected with the violation, which may lead to an increase or a decrease of the fine. Additionally, the above "base" amounts are subject to possible further adjustment for aggravating and/or mitigating circumstances.

Although the Guidelines on Fines have a recommendatory nature and are non-binding, the AMC is publicly committed to follow its rules. The statutory ceiling of fine of 5% of the turnover in the year preceding the fining decision remains in force.

In addition to the financial penalties, parties may be subject to any or all of the following negative implications:

  • Ban on the companies' cross-border activities with Ukraine, if the parties refuse to pay the imposed fine. This can be imposed by the Ministry of Economy of Ukraine at the AMC's request.
  • Third party damages claims (double the amount of actual damages sustained).
  • Reputational issues (information about the imposed fine, the identity of the offender, and non-confidential version of decisions are usually published by the AMC on its website) (see Question 5).
  • Invalidation of the transaction.

Additionally, the AMC may more actively scrutinise future notifications submitted by either party.

As regards notifying incorrectly, the following may lead to a fine of up to 1% of the infringer's turnover in the year immediately preceding the year when the fine is imposed:

  • Failure to timely provide requested information.
  • Provision of incomplete information.
  • Submission of false information to the AMC.

The Guidelines on Fines limit the "base" fine for the above informational violations to UAH136,000 (approximately EUR4,400). This amount is also subject to possible adjustment in the case of aggravating or mitigating circumstances.

There is no criminal or administrative liability for individuals, except that a state official, the CEO (or a top manager) may incur a nominal administrative fine if they fail to provide information to the AMC or provide incorrect or misleading information. However, an efficient mechanism for implementation of this norm has not been created to date.

Implementation before approval or after prohibition

Implementation before approval entails virtually the same liability as failure to notify at all. However, in practice, closing a non-problematic transaction before clearance but after the filing was made receives a more favourable treatment by the AMC than an omission to file. Closing after prohibition may entail more severe sanctions (see belowFailure to observe).

Failure to observe

The statutory maximum fine for failure to observe the AMC decision prohibiting a concentration, or only partial compliance with it, is 10% of the party's worldwide turnover in the year immediately preceding the year when the fine is imposed. Under the Guidelines on Fines, the base fine for the above violations is 10% of the turnover on the relevant (and/or adjacent) Ukrainian market.

The statutory maximum fine for failure to observe the AMC clearance decision that imposes certain obligations on the parties to the concentration is 5% of their worldwide turnover in the year immediately preceding the year when the fine is imposed. Under the Guidelines on Fines, the base fine for this violation, if it results in monopolisation or significant restriction of competition, is 10% of the turnover on the relevant (and/or adjacent) Ukrainian market.

The base fine can be further increased or decreased, subject to the application of coefficients and the existence of aggravating or mitigating circumstances (see above, Failure to notify correctly).

In addition, the CEO (or a top manager) of the infringing party may be subject to a nominal administrative fine for failure to implement the AMC decision or its untimely implementation. However, an efficient mechanism for the implementation of this rule has not been created to date (see above, Failure to notify correctly).

12. Is there a right of appeal against the regulator's decision and what is the applicable procedure? Are rights of appeal available to third parties or only the parties to the decision?

Rights of appeal

Any AMC decision can be appealed by the parties or third parties within two months following the receipt of the decision.

Procedure

Decisions of the AMC can be appealed to the commercial courts. 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:

  • Up to 135 calendar days.
  • Up to up to 75 calendar days in the appeal.
  • Up to 80 calendar days in the cassation.

In practice, these terms are not always strictly adhered to due to the courts' heavy workload and insufficient personnel. In complicated cases, the timelines can be longer due to the additional time required for investigations, collection of documents and information, and so on.

Third party rights of appeal

Third parties can appeal an AMC decision (see above, Rights of appeal and procedure).

Automatic clearance of restrictive provisions

13. If a merger is cleared, are any restrictive provisions in the agreements automatically cleared? If they are not automatically cleared, how are they regulated?

Restrictive provisions, including ancillary restraints, such as non-compete or other negative covenants, are not automatically covered by the AMC merger clearance decision. They usually qualify as concerted practices and require a separate anti-trust clearance.

Regulation of specific industries

14. What industries (if any) are specifically regulated?

Some industry-specific requirements may apply. In particular, there are special rules for calculation of thresholds for banks and insurance companies (see Thresholds).

15. Has the regulatory authority in your jurisdiction issued guidelines or policy on its approach in analysing mergers in a specific industry?

There are no industry-specific guidelines or policy for the analysis of mergers in a specific industry.

Joint ventures

16. How are joint ventures analysed under competition law?

Under the Competition Law, a joint venture may be considered a concentration or concerted practice, in which case the relevant general rules apply.

  • A joint venture is considered a concentration if it meets the following criteria:
  • It is established by two or more independent undertakings.
  • It can independently pursue business activity on a lasting basis.
  • Its establishment does not result in co-ordination of competitive behaviour of its parents or the joint venture, on the one hand, and its parents, on the other.

A concentration is notifiable and requires prior approval of the AMC if the relevant thresholds are exceeded (see Thresholds).

A joint venture is considered a concerted practice if it is established with an objective of, or results in, co-ordination of competitive behaviour of its parents or the joint venture, on one hand, and its parents, on the other. Such joint ventures require the AMC anti-trust (as opposed to merger) clearance prior to their establishment.

Inter-agency co-operation

17. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities in other jurisdictions in relation to merger investigations? If so, what is the legal basis for and extent of co-operation (in particular, in relation to the exchange of information, remedies/settlements)?

The AMC can co-operate with regulatory authorities from other jurisdictions, including by transferring the information to foreign competition authorities where the relevant international treaty exists. Confidential information can be provided to a foreign competition authority, but only if that authority:

  • Will use the information exclusively for carrying out its duty.
  • Can ensure that no disclosure for other purposes occurs.

The law does not expressly provide for co-operation relating to remedies or settlements.

Recent mergers, cases, trends and statistics

18. What notable recent developments, trends or notable recent mergers or proposed mergers have been reviewed by the regulatory authority in your jurisdiction and why is it notable? Are there any statistics published on annual merger reviews conducted in the jurisdiction?

The key policy developments are:

  • Law on Sanctions. In late 2017, the amendment to the Competition Law dealing with notifications by sanctioned (Russia-related) parties entered into force. Under the amendment, the AMC must reject notifications (or drop their review, if they are already in Phase I or II) if the notified concentrations are prohibited by the Law on Sanctions. According to the AMC, the new rules will apply to situations where:
    • any of the parties to the transaction (or any entity/individual connected to them through control relationships) is on the Ukrainian sanctions list; and
    • a particular type of sanction applies to a given individual or entity (for example, an asset's freeze and so on).
  • Non-Horizontal Merger Guidelines. The document was adopted in early 2018. It is largely modelled after the EU Non-Horizontal Merger Guidelines and will complement the existing Guidelines on Horizontal Mergers.

The most notable recent merger cases in Ukraine include:

  • The acquisition by The Carlyle Group of sole control over the specialty chemicals unit of Akzo Nobel N.V. for approximately USD12.5 billion. The transaction was unconditionally cleared in Ukraine.
  • The acquisition by a group led by The Blackstone Group LP of a majority stake in Thomson Reuters Corp's financial and risk unit. The deal was valued at approximately USD17 billion and was Blackstone's largest acquisition since the global financial crisis. It was unconditionally cleared in Ukraine.
  • The merger of equals of Clariant and Huntsman, the world's leading specialty chemicals companies, to create a company with approximately USD20 billion enterprise value. The matter was unconditionally cleared in Ukraine.
  • The USD66 billion acquisition by Bayer AG of Monsanto Company. The deal was cleared within Phase II and subject to conditions.
  • The merger of The Dow Chemical Company and E.I. du Pont de Nemours and Company, which represents a combined company's market capitalisation of around USD130 billion.

As regards publicly available statistics on merger review: in 2017 the AMC reviewed 666 merger notifications. Of these applications, 602 (90%) 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% of the overall number of applications submitted to the AMC).

Proposals for reform

19. Are there any proposals for reform concerning merger control?

Current proposals for merger control reform concern the following:

  • Calculation of fines in merger cases. According to the AMC, further changes to its Guidelines on Fines are to be expected. Also, the draft law on calculation of fines is still pending approval by the Parliament. The draft law aims to:
    • make the Guidelines on Fines binding upon the AMC;
    • 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 currently working on the draft Methodology on the Market Definition to improve its rules on defining the relevant market. The document is planned to be finalised by late 2018.
  • Amendments to the simplified procedure. Draft amendments to the Competition Law suggest also applying a 25-day simplified procedure to the transactions where:
    • none of the parties to the concentration are engaged in business activities in the same product and geographic market (no horizontal overlap), or in a product market which is upstream or downstream from a product market in which the other party to the concentration engages (no vertical overlap);
    • a party is to acquire sole control over the same undertaking where it already has joint control (assuming the acquisition of joint control was cleared, if that clearance was required);
    • the parties submit voluntary filings (that is, where the concentration is below the thresholds).
  • Increased filing fees. Draft amendments to the Competition Law suggest increasing the filing fee for submission of a notification that does not qualify for review under the simplified procedure from UAH20,400 (approximately EUR670) to UAH40,800 (approximately EUR1,300). The filing fee of UAH20,400 (approximately EUR670) for the simplified procedure notifications is not expected to change.

In addition, the following issues may be raised in the nearest future (most likely in late 2018 or early 2019):

  • The definition of the target group composition. Currently, the target is required to disclose in the notification rather detailed information on the sellers, although the control link to these sellers may be lost post-closing. This approach often places an enormous unjustified burden on the notifying parties.
  • The approach to calculation of the target assets/turnover. Currently the assets/turnover of the controlling sellers must be counted, however, the control link to these sellers may be lost after closing. Therefore, 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. Currently, ancillary restraints such as non-compete obligations accompanying a merger are often formalistically regarded as anti-competitive concerted practices requiring a separate clearance.

Online resources

Antimonopoly Committee of Ukraine (AMC)

www.amc.gov.ua

Description. This is the AMC's official website. The information is available in Ukrainian only.

The Organisation for Economic Co-operation and Development (OECD)

www.oecd.org/countries/ukraine/2381565.pdf

Description. This website is maintained by the OECD and contains the Law of Ukraine on Protection of Economic Competition 2001 (Competition Law) and certain legislative acts in English. English translations are for guidance only and not up to date.

The regulatory authority

Antimonopoly Committee of Ukraine (AMC)

Head. Yuriy Oleksandrovych Terentyev (Chairman)

Contact details. 45 V Lypkivskoho Street

Kyiv 03035

Ukraine

+38 044 251 62 62

slg@amcu.gov.ua

www.amc.gov.ua

Outline structure. The AMC is the principal state authority entrusted with ensuring protection of competition in entrepreneurial activities and state procurement. It comprises the Chairman and eight State Commissioners. The AMC has territorial divisions and administrative boards. The central office of the AMC has a number of departments, sections and industry-specific working groups (for example, concentrations and concerted practices, unfair competition, state procurement).

Responsibilities. The AMC's responsibilities include:

  • Review and analysis of applications for approval of concentrations and concerted practices.
  • Investigation of violations of Ukrainian competition laws, including unfair competition and abuse of dominance cases.
  • Market research, working out approaches to market definition (for example, by product, geographical scope).
  • General supervision of compliance with Ukrainian competition laws by undertakings and state and local authorities.

Procedure for obtaining documents. The following are published on the authority's website:

  • Main competition laws and regulations.
  • Draft laws and AMC regulations.
  • Various other AMC documents (for example, annual reports on the AMC's activities).
  • Non-confidential versions of the AMC's decisions/resolutions on merger and concerted practice applications and cases, violation of competition cases and the initiation of merger Phase II reviews.
  • Short announcements of the AMC decisions.