UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation The relevant merger control legislation in Ukraine includes the following: • Law on Protection of Economic Competition (the “Competition Law”); • Law on the Antimonopoly Committee of Ukraine; • Regulation on the Procedure for Consideration of Applications and Cases of the Concentration of Undertakings 2002; • Methodology for Assessment of the Monopoly (Dominant) Position of Undertakings on the Market; • Procedure for Calculating the Fines for Violation of Legislation on Protection of Economic Competition (the “Procedure on Fines”); • Guidelines on the Assessment of Horizontal Merg - ers; • Guidelines on the Assessment of Non-Horizontal Mergers; • Guidelines on Definition of Control; • Guidelines on the Assessment of Joint Ventures (the “Guidelines on JV”); and • Guidelines on the Application of the SSNIP test. 1.2 Legislation Relating to Particular Sectors Sanctions Under the Law of Ukraine on Sanctions and the Com - petition Law, the Antimonopoly Committee of Ukraine (AMC) will reject merger notifications or halt their review if: • any of the parties or undertakings under their con - trol is on the Ukrainian sanctions list; and • a specific sanction applies to the parties or under - takings under their control (eg, a prohibition to sell Foreign companies have limited or restricted abilities to make investments in certain sectors, but such limi - tations are not related to merger control. 1.3 Enforcement Authorities The AMC is the primary state authority entrusted with ensuring protection of competition. The AMC reviews, clears and prohibits transactions (concentrations). If shares or assets). Other Restrictions
the AMC prohibits a concentration, the Cabinet of Ministers of Ukraine (CMU) may overrule that deci - sion on public interest considerations. Judicial review is also available if the parties wish to appeal the AMC’s decision in courts.
2. Jurisdiction 2.1 Notification Compulsory Notification
Notification is compulsory if the parties hit the jurisdic - tional thresholds (see 2.5 Jurisdictional Thresholds ). The parties must obtain clearance before closing a notifiable transaction. Yet, the parties can make a vol - untary notification even if they do not meet the juris - dictional thresholds (eg, when there are difficulties in obtaining relevant financial information). No exceptions Apart from transactions that do not qualify as concen - trations, there are no other exceptions (see 2.3 Types of Transactions ). 2.2 Failure to Notify Financial Penalties for Failing to Notify Failing to notify may result in a fine of up to 5% of the group’s worldwide turnover in the year preceding the fine’s imposition. In practice, the fines seldom reach the statutory limit of 5%. When determining the base fine, the AMC should rely on the Procedure on Fines and can con - sider various factors such as the effect of the infringe - ment on competition, the significance of the market, and the profitability of the economic activity related to the infringement. This may result in an increase or decrease in the size of the fine. Furthermore, the AMC may additionally adjust the fine based on mitigating or aggravating factors. Other Risks in Failing to Notify Apart from financial penalties, the parties could poten - tially face any of the following adverse consequences: • third-party damages claims; • reputational damages; • closer examination of future notifications; and
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