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Контроль щодо злиттів: український аспект. 2014
Автор: Игорь Свечкарь, Александр Вознюк
Джерело: Джерело: IFLR Survey. Merger Control. – 2014
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Merger Control. Survey 2014. Ukraine

Section 1: REGULATORY FRAMEWORK

1.1 What is the applicable legislation and who enforces it?

The Law of Ukraine on Protection of Economic Competition 2001 (the Competition Law) is the principal merger control legislation. It defines the concept of a concentration, notifying thresholds, exemptions, basic procedural rules and sanctions.

The Antimonopoly Committee of Ukraine (the AMC) is the state authority responsible for enforcement of merger control rules in Ukraine.

1.2 What types of transaction are caught?

The following transactions are caught:

• merger of independent undertakings or takeover of one undertaking by another;

• acquisition of control over an undertaking, including through the

acquisition or lease of assets or appointments to certain positions;

• establishment by two or more undertakings of a new undertaking that will independently pursue business activity on a lasting basis, while its establishment should not result in co-ordination of competitive behaviour of its founders or of the new undertaking and its founders; and

• reaching or exceeding of 25% or 50% of the votes in the highest governing body of the undertaking.

Except for:

• establishment of an undertaking, which qualifies as concerted practices;

• acquisition of shares qualifying as a financial buyer transaction;

• intra-group transactions; and

• acquisition of control over an undertaking or its part by a trustee in a bankruptcy proceeding or the like.

Section 2: FILING

2.1 What are the thresholds for notification?

There are two alternative thresholds:

• turnover/assets-based (for the last fiscal year): the combined worldwide asset value or turnover of the parties exceeded €12 million ($16.4 million); and

(i) the value of each of at least two of the parties' total worldwide assets or turnover exceeded €1 million; and

(ii) the value of assets or turnover of at least one party in Ukraine exceeded €1 million; or

• market share-based: either individual or combined market share of the parties in the market concerned or the adjacent market exceeds 35%.

2.2 How clear are the filing requirements? Please also note whether filing is mandatory or voluntary

Once the relevant jurisdictional thresholds are met, the filing is mandatory, unless the transaction qualifies for an exemption (such as the financial buyer exemption). However, there are some uncertainties with filing requirements. For example, in practice the AMC may apply a 35% market share threshold to any product market where at least one party is active, and it may be unclear whether establishment of a joint venture qualifies as concentration or a concerted practice.

2.3 Does the merger regime extend to transactions taking place outside your jurisdiction and if so to what extent does there need to be local effect?

Although it may be argued that the local effects test is in place (for example, that Competition Law should apply to transactions that affect or could potentially affect competition in Ukraine) in practice a local nexus (for example, Ukrainian turnover and assets in excess of €1million) is sufficient for the AMC to assert jurisdiction.

2.4 How onerous are the filing requirements?

Filing requirements are onerous in respect of foreign-to-foreign transactions that have no or limited nexus to Ukraine. The disclosure requirements are extensive and burdensome (for example, they cover parties' activities in all product markets, not only relevant, markets). However, it is usually possible to have these waived by the AMC.

2.5 On whom does the burden to file fall, and are there filing fees?

The notification must be filed jointly by the parties directly involved in the transaction (for example, the purchaser and the target in case of acquisition). Filings with respect to hostile takeovers can be submitted by the acquirer only.

The filing fee is Hrn5,100 ($592).

Section 3: PENALTIES

3.1 At what level does your authority have jurisdiction to review and impose penalties for failure to notify deals?

Failure to notify or closing before clearance may entail:

(i) a fine of up to five percent of the total worldwide turnover of the undertaking in the last fiscal year (in practice fines have ranged from €500 to €60,000);

(ii) an AMC de-merger order or an order to restore the pre-merger state; or,

(iii) a ruling to declare the transaction invalid by the court on the request of the AMC.

Section 4: CLEARANCE

4.1 How advanced is the test for clearance?

The AMC approves a concentration if it does not lead to a monopolisation or a substantial restriction of competition in the Ukrainian market or a significant part of it.

If the AMC prohibits a concentration, the Cabinet of Ministers of the Ukraine may still approve it if its positive effects in relation to public interest outweigh the negative impact of the restriction of competition, unless such restriction:

(i) is not necessary for achieving the purpose of the concentration; or

(ii) jeopardises the market economy system.

4.2 What level of opportunity exists for the decision to be appealed?

An AMC decision may be appealed in whole or in part to the commercial court. However, due to a legal ambiguity, administrative courts also adjudicate in such claims. Generally, in practice, Ukrainian courts do not review substantive competition issues such as market definition, the standing of an undertaking in the market or the considerations for determining the level of fines.