Anti-Monopoly Regulations: Changes in Merger Control System

On March 26, 2016 the amendments to the Law of Ukraine On Protection of Economic Competition concerning the merger control procedures in Ukraine (“Amendments”) were introduced by the Ukrainian Parliament.
As a result, the number of transactions requiring merger clearance will be decreased by means of establishing (a) higher assets/turnover thresholds, and (b) a direct link with the Ukrainian market as a precondition for the application procedure to international transactions.
The Amendments also improve the procedure of approving concerted actions.
EFFECTIVE DATE
The Amendments will enter into force on May 18th, 2016, two months after their official publication.
CRITERIA FOR MERGER CLEARANCE
Entities are obliged to apply for merger clearance to the Antimonopoly Committee of Ukraine (“AMCU”) in the two following cases:
SCENARIO 1
• Combined worldwide turnover/total value of assets of all parties  for the last fiscal year exceeds EUR 30 million; and
• Total annual turnover/total value of assets in Ukraine of each of at least two parties exceeds EUR 4 million.
SCENARIO 2
• The target in an acquisition, seller of assets or one of the founders of newly established entity has turnover/value of assets in Ukraine exceeding EUR 8 million; and
• Worldwide turnover of at least one other party over the last fiscal year exceeds EUR 150 million.

 

NEW REVIEW TIMEFRAMES FOR AMCU

The Amendments introduce a shortened period of 25 calendar days for AMCU to review of merger clearance application in the following cases:
• only one of the parties operates in Ukraine; • combined market share of all parties does not exceed 15% of any product market; • the shares/combined market share does not exceed 20% of the interdependent markets.
However, if conditions of the concentration require additional examination regarding potential considerable restriction of competition on the market, AMCU can review the application within 30 calendar days that equally applies to all other cases.
If AMCU fails to review an application within established timeframes, the approval is considered automatically granted.    In case there are conditions that could serve as a ground for refusal of concentration, AMCU has to allow 30-day period for the parties to offer actions to eliminate the negative impact of concentration/concerted actions on competition. The said actions shall be proportional to possible negative effect and not unreasonably severe.
OTHER IMPORTANT UPDATES
* Information on beneficiaries
Failure to provide information on the ultimate beneficiaries of the parties of the concentration/concerted actions leads to AMCU’s automatic refusal to review the application.
* Preliminary consultations
Prior to submission of an application, the entities may approach AMCU for preliminary consultations as regards the scope of information and documents required for submission.
* Filing fees
Filing fee for the review of merger clearance application was increased four times and now equals UAH 20,400 (approximately EUR 684).