UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The AMC can prohibit a concentration if it leads to monopolisation or a substantial restriction of competition in the Ukrainian market or a signifi - cant part of it. 5.2 Parties’ Ability to Negotiate Remedies The parties may offer structural or behavioural remedies to remove or mitigate the negative impact of the concentration on competition dur - ing the Phase II review. Statistically, the AMC imposes behavioural remedies in the majority of cases. However, since 2024, structural remedies take precedence over other types of remedies. Conditional approvals often involve the imposi - tion of reporting obligations that enable the AMC to oversee and ensure compliance. In essence, the remedies are not aimed at addressing non- competition issues. 5.3 Legal Standard There is no specific legal standard that remedies must meet in order to be deemed acceptable. Nevertheless, the Competition Law requires remedies to be proportionate to the potential negative impact on competition and not be excessive, while oversight of their implementa - tion should be reasonable. Additionally, the par - ties should prove their intention and ability to implement them. After the parties have suggested the remedies, the AMC conducts a market survey. The AMC asks the parties’ competitors, customers and other interested parties whether the suggest - ed remedies are appropriate. Afterwards, the
authority assesses the remedies’ potential to eliminate possible harm to competition. 5.4 Negotiating Remedies With Authorities If the AMC identifies grounds for prohibiting the transaction during the Phase II review, it must notify the parties. In response, the parties may offer remedies to the AMC within a 30-day peri - od (extendable upon the parties’ request), which would allow the AMC to clear the transaction. The parties may initiate discussions on remedies during Phase I, but this would not prevent the case from proceeding to the Phase II review. The AMC does not propose remedies to the par - ties on its own, but it engages in consultations with them to reach an agreement on the terms and conditions of the potential remedies. The AMC refrains from imposing remedies that have not been mutually agreed upon by the parties. However, if the AMC and the parties are unable to reach an agreement, this could potentially lead to the AMC’s prohibition of the transaction. 5.5 Conditions and Timing for Divestitures There is no one-size-fits-all approach when it comes to conditions and timing for remedies. The approach varies based on the specific case and competition concerns identified during the review process. The AMC’s main goal is to ensure that the remedies effectively address the competition concerns. The parties must adhere to the remedies out - lined in the decision issued by the AMC follow - ing closing. Usually, behavioural remedies have a duration of three to five years. In a recent case, the AMC imposed structural remedies
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