UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
3.8 Pre-Notification Discussions With Authorities Ukrainian competition law does not provide for pre- notification discussions with the AMC. Yet, informal discussions are usually possible and encouraged in complex mergers. Such discussions can be held on a no-name basis, if necessary. 3.9 Requests for Information During the Review Process Requests for information are common during the pre - view period and the Phase I review. Although such requests are not typically burdensome, the AMC tends to set tight deadlines since the requests do not stop the clock or suspend the review. Under the Competition Law, Phase II may last up to three months after the AMC receives all the necessary data. This period can be extended if additional docu - ments, information or expert opinions are needed. However, in practice, Phase II should not take more than three months from the day the parties provid - ed exhaustive information the AMC asked for in the Phase II notice. 3.10 Accelerated Procedure See 3.7 Review Process . Under the Competition Law, the AMC will clear a trans - action if it does not lead to monopolisation (achieve - ment or strengthening of a dominant position in the market) or a substantial restriction of competition in the Ukrainian market. Otherwise, the AMC will prohibit such a transaction unless the parties offer sufficient remedies. A rebuttable presumption of dominance exists where: • a single undertaking holds more than 35% of the market share; • the two or three undertakings with the highest mar - ket shares combined hold more than 50% of the market share; and/or 4. Substance of the Review 4.1 Substantive Test
from third parties and public authorities, to gather their opinions on how a potential transaction may impact them or relevant markets. It is recommended that the Phase II review period should not exceed three months from the day the par - ties provided exhaustive information the AMC asked for in the Phase II notice. If required, the parties may request an extension of the review period. However, any request made by the AMC will pause the review period. Simplified Review Procedure A transaction may be eligible for a 25-day review pro - cedure if either: • only one party is active in Ukraine; or • the parties’ combined shares do not exceed 15% in the relevant market and 20% in vertically related markets. However, in practice, the AMC applies the simplified review procedure where only one party is active in Ukraine or none has a market share over 15% in any product market, whether relevant or not. Overall Timeline for Clearance In unproblematic transactions, the parties should expect merger clearance within: • 45 calendar days from the filing date under the standard review procedure; or • 25 calendar days from the filing date under the simplified review procedure. Typically, the AMC takes the entire review period to evaluate a transaction and adopts a decision during the last week leading up to the deadline. However, in practice, it is possible to request a quicker review, though there is no formal procedure. In addition, if the AMC fails to adopt a decision regard - ing the concentration before or on the date that the Phase I or Phase II period ends, it will be assumed that clearance has been granted by tacit consent. Nor - mally, the AMC provides formal clearance.
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