UKRAINE Law and Practice Contributed by: Illya Tkachuk, Igor Krasovskiy and Inna Kostrytska, INTEGRITES
worldwide turnover of at least one other party to the concentration exceeds EUR150 million. There is no market share threshold. All thresholds are calculated on a group-level basis (taking into account the relations of con- trol). All companies that are directly or indirectly controlled by the parent company form a group of companies, which constitutes a single under- taking from a merger control standpoint. The thresholds test is applied for the acquirer group and the target group (including the seller group). The thresholds refer to the whole turnover and assets of the parties, rather than only those relat- ed to the relevant product/service market. The thresholds are the same for all industries and sectors involved. 7.6 Labour Law Regulations The M&A transaction resulting in the transfer of a subject of economic activity requires notify- ing a trade union or other representatives of a labour collective (or employees if there are no representatives) about such transfer at least ten working days before the transfer. The transfer of the subject of economic activ- ity is understood as the change of a company’s principal owner, reorganisation or change of an owner of assets (portion of assets) represent- ing an organised group of resources used by an employer with preservation of the same type of activity as the previous owner. The labour col- lective may initiate consultations on the impact of changes on employees and measures to miti- gate negative effects. Consultations with the works council or trade union and respecting a two-month notice period are required if the M&A transaction is associated
with the lay-off of employees. In cases where the company’s principal shareholder changes, the collective bargaining agreement remains in force for no more than a year (unless the parties agree otherwise). 7.7 Currency Control/Central Bank Approval While, as a rule of thumb, acquisition of shares in technology companies does not require any regulatory approvals other than merger clear- ance, acquiring or increasing the qualifying hold- ing in regulated fintech companies, the same as in banking institutions or insurance companies, is subject to approval of the National Bank of Ukraine (NBU). Specifically, for banks and financial companies involved in M&A, reaching or exceeding 10%, 25%, 50% or 75% of share capital or voting rights (direct or indirect ownership or control) or divestment below the above thresholds requires prior approval from the NBU. The NBU considers the documents within three months of receiving the complete package – therefore, submission must be three months before the date of the anticipated acquisition. For investment firms (ie, traders in financial instruments and asset management companies) involved in M&A, reaching or exceeding 10%, 25%, 50% or 75% of share capital or voting rights (direct or indirect ownership or control) or divestment below the above thresholds requires prior approval from the securities regulator (the National Securities and Stock Market Commis- sion). Finally, it is vitally important to structure and doc- ument any investments in Ukraine, thoroughly considering various capital and exchange con- trols imposed in response to Russia’s invasion
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