UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
undertaking to direct the business activi - ties of the target undertaking, etc; (c) the acquisition of shares (or other equity stakes) with control rights attaching to them; and (d) appointments to management positions resulting in cross-directorship. This list is open-ended, so any change in con - trol over an undertaking (based on shareholders’ agreements, changes to articles of association, etc) may be caught. • The creation by at least two undertakings of a new full-function undertaking that will independently conduct business activities on a lasting basis while its creation does not result in co-ordinating competitive behaviour between its parents or between the parents and the new undertaking. Internal Restructurings, Reorganisations, and Other Exempted Transactions Under the Competition Law, the following trans - actions are not considered concentrations and do not require notification and clearance as such. • Intra-group transactions and reorganisations, provided that the control links within the group were established in compliance with the Ukrainian merger control rules. • The creation of a new undertaking aiming at or resulting in the co-ordination of competi - tive behaviour of either its parents or the new undertaking and its parents. Such a transac - tion is considered a concerted practice and may require separate antitrust clearance. • The acquisition of shares by a financial institution with the intention of reselling them within one year (extendable), provided that
the financial institution refrains from exercis - ing voting rights during the holding period. • The acquisition of control over an undertaking or a part of it by a receiver or a representative of a state authority. • The acquisition of an undertaking’s assets or shares by a bank or other financial institution under the restructuring plan, provided that such assets/shares are subsequently sold to a third party within two years from the acqui - sition date. • The acquisition of an undertaking’s assets or shares by a bank or other financial institution as a result of foreclosure on collateral provid - ed that (i) the acquirer refrains from exercising voting rights/utilising acquired assets during the holding period, and (ii) such shares/assets are subsequently sold to a third party within one year from the acquisition date (extend - able). 2.4 Definition of “Control” Definition of “Control” The Competition Law defines “control” quite broadly as the possibility of exercising decisive influence (including through veto rights) on an undertaking’s business activities. It is presumed that control exists where one undertaking direct - ly or indirectly: • holds or manages over 50% of shares in another undertaking; • holds over 50% of votes in another undertak - ing’s highest governing body; • has the authority to appoint CEO, deputy CEO, or more than 50% of the members of the supervisory board (the board of directors), etc; • has the right to receive at least 50% of another undertaking’s profits; or
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