UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
1.3 Enforcement Authorities The AMC is the primary state authority entrust - ed with ensuring protection of competition. The AMC reviews, clears and prohibits transactions (concentrations). If the AMC prohibits a con - centration, the Cabinet of Ministers of Ukraine (CMU) may overrule that decision on public interest considerations. Judicial review is also available if the parties wish to appeal the AMC’s decision in courts.
economic activity related to the infringement. This may result in an increase or decrease in the size of the fine. Furthermore, the AMC may additionally adjust the fine based on mitigating or aggravating factors. Other Risks in Failing to Notify Apart from financial penalties, the parties could potentially face any of the following adverse consequences: • third-party damages claims; • reputational damages; • closer examination of future notifications; and • invalidation of the transaction in some cases. Recent Penalties In 2024, the biggest fine for failure to notify was around EUR849,992, and the smallest fine for such infringement was around EUR1,138. Publicity and Confidentiality The AMC must publish non-confidential versions of decisions on infringement of the Competition Law. In addition, the AMC makes a brief press release regarding the adopted decision or reso - lution (including the parties’ identities, penalties and the case outcome). 2.3 Types of Transactions Transactions Considered Concentrations The Competition Law provides an exhaustive list of transactions defined as concentrations that may require prior merger clearance. • The merger of at least two independent undertakings or the takeover of one undertak - ing by another. • The acquisition of direct or indirect control over an undertaking or its part through: (a) the purchase or lease of its assets; (b) contractual arrangements allowing an
2. Jurisdiction 2.1 Notification Compulsory Notification
Notification is compulsory if the parties hit the jurisdictional thresholds (see 2.5 Jurisdictional Thresholds ). The parties must obtain clearance before closing a notifiable transaction. Yet, the parties can make a voluntary notification even if they do not meet the jurisdictional thresholds (eg, when there are difficulties in obtaining rel - evant financial information). No exceptions Apart from transactions that do not qualify as concentrations, there are no other exceptions (see 2.3 Types of Transactions ). 2.2 Failure to Notify Financial Penalties for Failing to Notify Failing to notify may result in a fine of up to 5% of the group’s worldwide turnover in the year preceding the fine’s imposition. In practice, the fines seldom reach the statutory limit of 5%. When determining the base fine, the AMC should rely on the Procedure on Fines and can consider various factors such as the effect of the infringement on competition, the signifi - cance of the market, and the profitability of the
692 CHAMBERS.COM
Powered by FlippingBook