UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
2.10 Joint Ventures Concentration or Concerted Practice? Under the Competition Law, the creation by two or more undertakings of a new full-function undertaking that will independently pursue busi - ness activities on a lasting basis qualifies as a concentration, unless such creation results in the co-ordination of competitive behaviour either of its parents or of the new undertaking and its parents. Under the Competition Law and the Guidelines on JV, joint ventures have to meet the full-func - tionality criterion, meaning they must be able to perform all functions of an autonomous eco - nomic entity, to be considered concentrations. There are no special rules for determining wheth - er joint ventures meet the jurisdictional thresh - olds (see 2.5 Jurisdictional Thresholds ). 2.11 Power of Authorities to Investigate a Transaction In general, the AMC cannot investigate a trans - action that does not meet jurisdictional thresh - olds. Hence, there are no circumstances when the AMC may “call in” such transactions. However, the AMC does constantly monitor the public domain and can make inquiries to check merger control compliance. The limitation period for the AMC to take action in relation to mergers is five years from closing. 2.12 Requirement for Clearance Before Implementation The implementation of a transaction must be suspended until clearance. 2.13 Penalties for the Implementation of a Transaction Before Clearance See 2.2 Failure to Notify .
2.14 Exceptions to Suspensive Effect There are no general exceptions to the suspen - sive effect. The suspension effect applies glob - ally, and the Ukrainian merger control rules do not provide for any possibilities to obtain an indi - vidual waiver or derogation from the suspensive effect. 2.15 Circumstances Where Implementation Before Clearance Is Permitted Closing prior to clearance constitutes an infringe - ment of the Ukrainian merger control rules. As described in 2.14 Exceptions to Suspensive Effect , the suspensive effect applies globally. Simply carving out the Ukrainian business or assets and proceeding with global closing will not absolve parties of liability. Yet, the AMC may consider ring-fence or hold separate arrangements as a mitigating factor when determining the amount of a fine. It is cru - cial for parties to inform the AMC in advance about any carve-out arrangement before clos - ing and provide a detailed explanation of how it will work.
3. Procedure: Notification to Clearance 3.1 Deadlines for Notification
In general, there are no deadlines for notification. Obtaining merger clearance before closing is the only requirement. If a concentration is carried out through auc - tions or similar methods, the parties can make the notification before or after the start of the auction but no later than 30 days from the date of announcing the winner.
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