UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
2.9 Market Share Jurisdictional Threshold Ukraine does not have a market share jurisdictional threshold. 2.10 Joint Ventures Concentration or Concerted Practice? Under the Competition Law, the creation by two or more undertakings of a new full-function undertaking that will independently pursue business activities on a lasting basis qualifies as a concentration, unless such creation results in the co-ordination of competitive behaviour either of its parents or of the new under - taking and its parents. Under the Competition Law and the Guidelines on JV, joint ventures have to meet the full-functionality criterion, meaning they must be able to perform all functions of an autonomous economic entity, to be considered concentrations. There are no special rules for determining whether joint ventures meet the jurisdictional thresholds (see 2.5 Jurisdictional Thresholds ). 2.11 Power of Authorities to Investigate a Transaction In general, the AMC cannot investigate a transaction that does not meet jurisdictional thresholds. Hence, there are no circumstances when the AMC may “call in” such transactions. However, the AMC does constantly monitor the pub - lic domain and can make inquiries to check merger control compliance. The limitation period for the AMC to take action in relation to mergers is five years from closing. 2.12 Requirement for Clearance Before Implementation The implementation of a transaction must be sus - pended until clearance. 2.13 Penalties for the Implementation of a Transaction Before Clearance See 2.2 Failure to Notify .
The Seller May Remain Relevant The selling party’s assets and turnover can only be excluded from the target group’s performance if the target possesses no Ukrainian assets, has no cur - rent operations in Ukraine, and has not been active there during the two preceding financial years. Yet, the wording of the relevant provisions is vague, so even a one-time operation can be considered an activity in Ukraine, setting the bar for excluding the selling party’s financials quite high. Consideration of Business Structure Changes Changes in the business during the reference period (such as other acquisitions, divestments or business closures) are generally reflected in the calculation of jurisdictional thresholds. If business entities were sold or closed, they should not be considered in the calculation of the jurisdictional threshold. Similarly, if a party acquired another undertaking during the ref - erence period, the assets and turnover of such an undertaking should be considered for the jurisdictional threshold. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions are subject to merger control if the parties hit the jurisdictional thresholds. Therefore, a transaction with no reasonable nexus to Ukraine (ie, with no local presence, effects, or sales/ assets) may still be caught if it meets the jurisdictional thresholds. The only exception during martial law is defence/mili - tary-related transactions. Jurisdictional thresholds do not apply to the concentration if such a deal meets the following conditions: • it is conducted outside Ukraine; • it is aimed at the development of technologies and production of military and dual-use goods; • the final recipients and/or purchasers of the prod - ucts and technologies are the Armed Forces of Ukraine or law enforcement/military agencies in Ukraine; • the products and technologies are either not devel - oped or produced in Ukraine, or their production levels are insufficient; and • an acquirer is active in the military sector or pro - duces/develops dual-use goods.
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