UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
• exercises control over another undertaking in other ways (through charter documents, contractual arrangements, etc). Ukrainian competition law distinguishes between: • sole and joint control; • negative and positive control; and • de jure and de facto control. Notably, standard minority shareholder protec - tion rights generally do not confer control over the undertaking. Minority non-controlling stakes can be caught Acquisitions of minority stakes are caught if they ensure control (eg, on a contractual basis) over the relevant undertaking (see 2.3 Types of Trans- actions ). A mere acquisition of a non-controlling minority shareholding does not require prior merger clearance. 2.5 Jurisdictional Thresholds A transaction that qualifies as a concentration requires merger clearance if the parties to the concentration hit one of the following jurisdic - tional thresholds: • the combined worldwide value of assets or turnover of the parties exceeds EUR30 mil - lion, and the value of the Ukrainian assets or turnover of each of at least two parties exceeds EUR4 million; or • the value of the assets in Ukraine or the Ukrainian turnover of a party exceeds EUR8 million and the worldwide turnover of at least one other party exceeds EUR150 million. There are no special jurisdictional thresholds applicable to particular sectors. However, under
certain conditions, the jurisdictional thresholds will not apply to transactions in the military sec - tor (see 2.3 Types of Transactions ). 2.6 Calculations of Jurisdictional Thresholds Reporting Period The value of assets and turnover is calculated for the financial year preceding the year of the con - centration. For the calculation of jurisdictional thresholds, a series of transactions entered into by the same undertakings (or groups of under - takings) and affecting the same or adjacent mar - kets within a two-year period is considered as one and the same concentration arising on the date of the last transaction. Calculation Rules The value of assets is based on book value. Special calculation rules apply for banking and insurance companies: • one-tenth of the bank’s assets should be con - sidered when calculating the turnover/asset threshold; and • an insurance company’s net assets are relevant for calculating the asset threshold, while the revenues generated from insurance activities (including insurance premiums) are relevant for calculating the turnover threshold. Sales and assets booked in a foreign cur - rency should be converted into euros using the exchange rate set by the National Bank of Ukraine on the last day of the respective fiscal year.
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