UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
4.4 Competition Concerns Under the Guidelines on the Assessment of Hori - zontal Mergers, the AMC will evaluate whether a concentration may: • eliminate important competitive constraints on one or more firms, which consequently would have increased market power (non- coordinated effects); and/or • change the nature of competition in such a way that firms that previously were not co-ordinating their behaviour are now signifi - cantly more likely to co-ordinate and raise prices or otherwise harm effective competi - tion (co-ordinated effects). Under the Guidelines on the Assessment of Non-Horizontal Mergers, the AMC will evaluate whether a concentration may: • raise the costs of downstream rivals by restricting their access to an important input (input foreclosure); • foreclose upstream rivals by restricting their access to a sufficient customer base (cus - tomer foreclosure); • reduce rivals’ abilities or incentives to com - pete by combining products in closely related markets to leverage a strong market position from one market to another by means of tying or bundling practices; and/or • increase the possibility of tacit co-ordination. 4.5 Economic Efficiencies The AMC may consider economic efficiencies when reviewing a notification, but such argu - ments are unlikely to be decisive. At the same time, the CMU considers economic and other practical efficiencies when deciding whether to allow a transaction that the AMC has previously prohibited. The CMU will clear a transaction if the benefits to the public outweigh the nega -
tive impact on competition, except when the competition restriction is not necessary for the concentration’s goal, or it threatens the market economy system. 4.6 Non-Competition Issues In general, the AMC should not take into account any non-competition issues as part of the review process. Sometimes, the AMC may scrutinise a transaction more closely if it takes place in a strategic sector (eg, in the defence industry) or involves an undertaking having a sanctioned person in its corporate structure (even non-con - trolling shareholding by such person may raise the regulator’s concerns). However, ultimately, the AMC must clear a transaction if it does not lead to monopolisation or significant restriction of competition. At the same time, the AMC will not review any transaction if Ukrainian sanctions apply to the parties of such a transaction (see 1.2 Legislation Relating to Particular Sectors ). Currently, Ukraine does not have an FDI regime or rules for the screening of foreign subsidies in place. 4.7 Special Consideration for Joint Ventures There are no special considerations in the sub - stantive review of joint ventures. However, if the creation of a JV results in the co-ordination of competitive behaviour, such a JV is considered a concerted practice and will be assessed accord - ingly.
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