UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
Sometimes, the AMC may scrutinise a transaction more closely if it takes place in a strategic sector (eg, in the defence industry) or involves an undertaking having a sanctioned person in its corporate structure (even non-controlling shareholding by such person may raise the regulator’s concerns). However, ulti - mately, the AMC must clear a transaction if it does not lead to monopolisation or significant restriction of competition. At the same time, the AMC will not review any trans - action if Ukrainian sanctions apply to the parties of such a transaction (see 1.2 Legislation Relating to Particular Sectors ). Currently, Ukraine does not have an FDI regime or rules for the screening of foreign subsidies in place. However, several draft bills aimed at introducing an FDI regime are currently under public discussion. 4.7 Special Consideration for Joint Ventures There are no special considerations in the substantive review of joint ventures. However, if the creation of a JV results in the co-ordination of competitive behav - iour, such a JV is considered a concerted practice and will be assessed accordingly. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The AMC can prohibit a concentration if it leads to monopolisation or a substantial restriction of competi - tion in the Ukrainian market or a significant part of it. 5.2 Parties’ Ability to Negotiate Remedies The parties may offer structural or behavioural rem - edies to remove or mitigate the negative impact of the concentration on competition during the Phase II review. Statistically, the AMC imposes behavioural remedies in the majority of cases. However, since 2024, structural remedies take precedence over other types of remedies. Conditional approvals often involve the imposition of reporting obligations that enable the AMC to oversee
and ensure compliance. In essence, the remedies are not aimed at addressing non-competition issues. 5.3 Legal Standard There is no specific legal standard that remedies must meet in order to be deemed acceptable. Nevertheless, the Competition Law requires remedies to be propor - tionate to the potential negative impact on compe - tition and not be excessive, while oversight of their implementation should be reasonable. Additionally, the parties should prove their intention and ability to implement them. After the parties have suggested the remedies, the AMC conducts a market survey. The AMC asks the parties’ competitors, customers and other interested parties whether the suggested remedies are appropri - ate. Afterwards, the authority assesses the remedies’ potential to eliminate possible harm to competition. 5.4 Negotiating Remedies With Authorities If the AMC identifies grounds for prohibiting the trans - action during the Phase II review, it must notify the parties. In response, the parties may offer remedies to the AMC within a 30-day period (extendable upon the parties’ request), which would allow the AMC to clear the transaction. The parties may initiate discussions on remedies dur - ing Phase I, but this would not prevent the case from proceeding to the Phase II review. The AMC does not propose remedies to the parties on its own, but it engages in consultations with them to reach an agreement on the terms and conditions of the potential remedies. The AMC refrains from impos - ing remedies that have not been mutually agreed upon by the parties. However, if the AMC and the parties are unable to reach an agreement, this could potentially lead to the AMC’s prohibition of the transaction. 5.5 Conditions and Timing for Divestitures There is no one-size-fits-all approach when it comes to conditions and timing for remedies. The approach varies based on the specific case and competition concerns identified during the review process. The AMC’s main goal is to ensure that the remedies effec - tively address the competition concerns.
729 CHAMBERS.COM
Powered by FlippingBook