UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
4.4 Competition Concerns Under the Guidelines on the Assessment of Horizontal Mergers, the AMC will evaluate whether a concentra - tion may: • eliminate important competitive constraints on one or more firms, which consequently would have increased market power (non-coordinated effects); and/or • change the nature of competition in such a way that firms that previously were not co-ordinating their behaviour are now significantly more likely to co-ordinate and raise prices or otherwise harm effective competition (co-ordinated effects). Under the Guidelines on the Assessment of Non- Horizontal Mergers, the AMC will evaluate whether a concentration may: • raise the costs of downstream rivals by restricting their access to an important input (input foreclo - sure); • foreclose upstream rivals by restricting their access to a sufficient customer base (customer foreclo - sure); • reduce rivals’ abilities or incentives to compete by combining products in closely related markets to leverage a strong market position from one market to another by means of tying or bundling practices; and/or • increase the possibility of tacit co-ordination. 4.5 Economic Efficiencies The AMC may consider economic efficiencies when reviewing a notification, but such arguments are unlikely to be decisive. At the same time, the CMU considers economic and other practical efficiencies when deciding whether to allow a transaction that the AMC has previously prohibited. The CMU will clear a transaction if the benefits to the public outweigh the negative impact on competition, except when the competition restriction is not necessary for the con - centration’s goal, or it threatens the market economy system. 4.6 Non-Competition Issues In general, the AMC should not take into account any non-competition issues as part of the review process.
• the four or five undertakings with the highest mar - ket shares combined hold more than 70% of the market share. 4.2 Markets Affected by a Transaction Under Ukrainian competition law, the relevant market is defined as a market on which a concentration of undertakings takes place, and it will be affected or can be affected by such a concentration. The relevant market combines the product market and the geo - graphic market, defined as follows: • a relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer by reason of the products’ characteristics, their prices and their intended use; and • a relevant geographic market comprises the area where there are buying and selling relations and consumers (customers) can easily satisfy their demand for a particular product under normal con - ditions. The geographic market may encompass a state, region, district, city, or their parts. The Methodology for Assessment of the Monopo - ly (Dominant) Position of Undertakings includes a detailed list of steps to determine the relevant market in a merger case. If the AMC is unable to define the market boundaries with this approach, the regulator will use the SSNIP test. However, in practice, the AMC typically accepts the relevant product market definition proposed by the notifying parties unless it is unreasonably broad or outrightly incorrect. At the same time, the AMC gener - ally prefers a narrower definition for the relevant prod - uct market, focusing on the core business activities of the parties. 4.3 Reliance on Case Law The AMC may take into account case law of the EU Commission or other international competition author - ities if the AMC lacks the necessary experience in a particular market.
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