UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
Under the Competition Law, Phase II may last up to three months after the AMC receives all the necessary data. This period can be extended if additional documents, information or expert opinions are needed. However, in practice, Phase II should not take more than three months from the day the parties provided exhaustive information the AMC asked for in the Phase II notice. 3.11 Accelerated Procedure See 3.8 Review Process . Under the Competition Law, the AMC will clear a transaction if it does not lead to monopolisation (achievement or strengthening of a dominant position in the market) or a substantial restric - tion of competition in the Ukrainian market. Oth - erwise, the AMC will prohibit such a transaction unless the parties offer sufficient remedies. A rebuttable presumption of dominance exists where: • a single undertaking holds more than 35% of the market share; 4. Substance of the Review 4.1 Substantive Test • the two or three undertakings with the highest market shares combined hold more than 50% of the market share; and/or • the four or five undertakings with the highest market shares combined hold more than 70% of the market share. 4.2 Markets Affected by a Transaction Under Ukrainian competition law, the relevant market is defined as a market on which a con - centration of undertakings takes place, and it will be affected or can be affected by such a
concentration. The relevant market combines the product market and the geographic market, defined as follows: • a relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer by reason of the products’ charac - teristics, their prices and their intended use; and • a relevant geographic market comprises the area where there are buying and selling rela - tions and consumers (customers) can easily satisfy their demand for a particular product under normal conditions. The geographic market may encompass a state, region, dis - trict, city, or their parts. The Methodology for Assessment of the Monop - oly (Dominant) Position of Undertakings includes a detailed list of steps to determine the relevant market in a merger case. If the AMC is unable to define the market boundaries with this approach, the regulator will use the SSNIP test. However, in practice, the AMC typically accepts the relevant product market definition proposed by the notifying parties unless it is unreasonably broad or outrightly incorrect. At the same time, the AMC generally prefers a narrower definition for the relevant product market, focusing on the core business activities of the parties. 4.3 Reliance on Case Law The AMC may take into account case law of the EU Commission or other international competi - tion authorities if the AMC lacks the necessary experience in a particular market.
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