UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
• exercises control over another undertaking in other ways (through charter documents, contractual arrangements, etc). Ukrainian competition law distinguishes between: • sole and joint control; • negative and positive control; and • de jure and de facto control. Notably, standard minority shareholder protection rights generally do not confer control over the under - taking. Minority non-controlling stakes can be caught Acquisitions of minority stakes are caught if they ensure control (eg, on a contractual basis) over the relevant undertaking (see 2.3 Types of Transactions ). A mere acquisition of a non-controlling minority share - holding does not require prior merger clearance. 2.5 Jurisdictional Thresholds A transaction that qualifies as a concentration requires merger clearance if the parties to the concentration hit one of the following jurisdictional thresholds: • the combined worldwide value of assets or turno - ver of the parties exceeds EUR30 million, and the value of the Ukrainian assets or turnover of each of at least two parties exceeds EUR4 million; or • the value of the assets in Ukraine or the Ukrain - ian turnover of a party exceeds EUR8 million and the worldwide turnover of at least one other party exceeds EUR150 million. There are no special jurisdictional thresholds appli - cable to particular sectors. However, under certain conditions, the jurisdictional thresholds will not apply to transactions in the military sector (see 2.8 Foreign- to-Foreign Transactions ). 2.6 Calculations of Jurisdictional Thresholds Reporting Period The value of assets and turnover is calculated for the financial year preceding the year of the concentration. For the calculation of jurisdictional thresholds, a series of transactions entered into by the same undertakings (or groups of undertakings) and affecting the same or
adjacent markets within a two-year period is consid - ered as one and the same concentration arising on the date of the last transaction. Calculation Rules The value of assets is based on book value. Special calculation rules apply for banking and insurance companies: • one-tenth of the bank’s assets should be consid - ered when calculating the turnover/asset threshold; and • an insurance company’s net assets are relevant for calculating the asset threshold, while the revenues generated from insurance activities (including insurance premiums) are relevant for calculating the turnover threshold. Sales and assets booked in a foreign currency should be converted into euros using the exchange rate set by the National Bank of Ukraine on the last day of the respective fiscal year. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds Group-Wide Basis All undertakings linked with parties to a concentration by control relationships (a group-wide basis) are rel - evant for the purpose of calculating the jurisdictional thresholds. Therefore, a group-wide basis is based on the concept of control (see 2.4 Definition of “Con - trol” ). Attribution of JV’s Assets/Turnover For purposes of calculating jurisdictional thresholds, a JV’s assets/turnover should be evenly distributed among its controlling shareholders regardless of the number of shares/votes they hold. However, the full turnover/value of assets of a co-controlling JV share -
holder should be attributed to the JV. Disregard Non-Controlling Interests
Turnover or assets figures of non-controlling interests are not taken into consideration when determining the turnover or assets for the purpose of jurisdictional thresholds calculation.
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