UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
(b) confirming that the lender does not acquire control over the borrower as a result of the financing arrangement (eg, loan agreement); • PoAs from the notifying parties (notarised and apostilled or legalised); and • a draft or copy of transactional documents (share purchase agreements, shareholders’ agreements, memorandums of understanding, etc). For the standard review procedure (in addition to the items mentioned in the list above): • a detailed feasibility study of the concentration’s effect on the Ukrainian markets; • information regarding parties’ membership in asso - ciations and their constitutional documents; and • parties’ excerpts from the trade register or similar (notarised and apostilled or legalised). Confidential information must be clearly labelled for appropriate treatment by the AMC. The filing must be submitted in Ukrainian language. Extracts from trade registers and PoAs of foreign undertakings must be notarised and apostilled or legalised. Documents in a foreign language must be provided with a certified translation into Ukrainian. Parties must submit a hard copy and an electronic version (PDF, Word document, etc) of the notification and all attached documents on a flash drive. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification If any necessary information/document is absent at the outset, the AMC may either ask for it during the review process or give a notice of incompleteness within the 15-day preview period. The parties will then have to file again, including the missing information/ documents. In this situation, the AMC will not impose any penalties. Providing wrong or false information in the filing, sub - ject to adjustments taking into account any aggravat - ing or mitigating factors, may lead to a penalty of up to 1% of the relevant party’s revenue from the year preceding the fine’s imposition. The AMC may further adjust this amount, taking into account any aggravat -
ing or mitigating factors. In addition, the AMC may reconsider its decision if it was based on misleading information. If the parties do not provide requested information during the Phase II review, the AMC may close a merger case without ruling on the essence. The par - ties have the option to resubmit their application. 3.7 Review Process The phases of the review process are as follows. Standard Review Procedure Preview period The AMC will take up to 15 calendar days to evaluate whether the notification is complete and can proceed for substantive review (Phase I). If the AMC considers the notification incomplete, the regulator may reject it. In this case, the parties would need to file again, supplementing the original notification with the miss - ing information. During the preview period, the AMC asks follow-up questions that do not suspend the 15-day preview period. Generally, parties have several days to pro - vide the requested information (see 3.9 Requests for Information During the Review Process ). Substantive review (Phase I) The AMC will take up to 30 calendar days to evalu - ate whether to approve the concentration or whether there are grounds to prohibit it. If there are potential grounds for prohibition, Phase II will begin. In-depth review (Phase II) The Phase II review entails a meticulous evaluation of the transaction and the related competition issues, as well as a thorough scrutiny of expert opinions, consumers’ and competitors’ views, and any other supplementary information. The AMC will publish information on the commencement of the Phase II review on its website. Third parties (eg, competitors, customers/consumers, suppliers), which believe that the transaction may significantly affect their interests, may give the AMC their reasoned opinions on why the transaction should be prohibited. Furthermore, the AMC commonly conducts surveys among consum - ers and customers, as well as requesting information
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