UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights During the review process, the AMC may involve third parties such as competitors, suppliers, consumers and experts if the decision on the transaction may significantly impact the rights and interests of such third parties. This typically occurs during Phase II. The AMC operates independently in making its decision, which is later communicated to the notifying parties. Third parties are permitted to submit their observa - tions, specifically regarding the transactions and their impact on the market. These observations are then added to the case as evidence and must be taken into account when the AMC reaches a decision. Third parties have the right to provide evidence, submit comments, objections or proposals, and be present at the Phase II case hearings (subject to safeguards for parties’ confidential information). Furthermore, they can request a copy of the AMC’s decision regarding the transaction and have the right to appeal against that decision. 7.2 Contacting Third Parties The AMC typically contacts third parties during the Phase II review by sending out a written request for information or documents. The AMC will set dead - lines for provision of the requested information. The AMC may impose penalties on a third party for non- compliance with the request. The AMC will “market test” remedies offered by the parties. 7.3 Confidentiality On the publication of the AMC’s decisions, see 5.6 Issuance of Decisions . Automatic confidentiality does not apply to any infor - mation. However, parties may request confidentiality and provide a valid justification for it. In such cases, a non-confidential version of the information must also be provided. If the justification is not satisfac - tory, the AMC will reject the request for confidentiality. In practice, the AMC typically satisfies confidentiality
requests, so commercial information, including busi - ness secrets, will be kept confidential. In addition, the notifying parties can request the AMC to review a draft clearance decision to identify any restricted information before the relevant decision is published. 7.4 Co-Operation With Other Jurisdictions The AMC typically co-operates with other competi - tion authorities through bilateral treaties. In addition to exchanging information about ongoing or past cases, the AMC may engage in broader co-operation with these authorities, such as co-operating on updates to competition legislation. The AMC also works with international organisations such as the Organisation for Economic Co-operation and Development, the UN Conference on Trade and Development, and the Inter - national Competition Network. The AMC does not have to seek the parties’ permis - sion to share information with other jurisdictions. However, the AMC should ask for the parties’ permis - sion before sharing confidential information. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review If the AMC prohibits the concentration, the CMU may still grant clearance. The CMU will clear a transac - tion if the benefits to the public outweigh the negative impact on competition, except when the restriction is not necessary for the concentration’s goal or it threat - ens the market economy system. The parties can also challenge the AMC’s decisions in commercial courts. 8.2 Typical Timeline for Appeals The parties can file an appeal to the CMU within 30 calendar days from the decision date. However, there are no publicly available cases where the CMU grant - ed clearance for a concentration that was prohibited by the AMC. The parties can file an appeal to a commercial court within two months of the date of receipt of the deci -
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