Today, the Antimonopoly Committee of Ukraine (the AMC) adopted the guidelines on procedures for merger and concerted actions approval during the martial law (the Guidelines).
The document is aimed at eliminating legal uncertainty regarding compliance with competition law requirements during martial law.
To start with, despite the martial law, legal entities are not exempted from the obligation to clear mergers or concerted actions with the AMC. However, the Guidelines set up a simplified submission, special review process and introduce AMC approaches to fine calculation for failure to receive prior AMC approval.
The basic requirements to applications
The document envisages common requirements for merger clearance and concerted actions applications, as well as outlines specific minimum requirements to each type of notification.
The basic common requirements are as follows:
Applications and annexes thereto shall be signed by authorized representatives and submitted to the AMC postal address effective on the submission date. As of 28.03.2022, such address is 4 Kopernyka str., Lviv;
Should the applicants be unable to file the applications to the AMC’s postal address, they may file the documents in PDF to the AMC’s e-mail: email@example.com. In such case, applicants shall provide their relevant clarifications on inability to sign and file the documents to the postal address;
The application and annexes thereto shall be filed not less than 15 days prior to completion of concentration/concerted actions.
The applications shall in particular meet the following minimum requirements:
Description of concentration/concerted actions;
Description of the main types of participants’ business activity;
List of ultimate beneficial owners;
Information on shareholders (family members) – residents of the Russian Federation, including the cases where the Russian Federation itself is the shareholder directly or indirectly;
Control relations chart before and after concentration;
Documents evidencing the authorities of representatives;
A document evidencing the payment for review procedure.
Review of applications submitted during the martial law shall be suspended not later than in 15 days from the submission date. During the 3-month period after termination/cancellation of the martial law, applicants may file supplements to the applications submitted during the martial law. The supplements shall be made in accordance with the standard requirements of the Law of Ukraine “On protection of economic competition”, Concentration/Concerted Actions Regulations and mostly relates to the information on parties’ presence in Ukraine, including turnover on Ukrainian markets, calculation of market shares, description of the customers, competitors and suppliers etc.
Should the supplements be filed within the said period, the AMC shall renew the review period of the application including the supplements. Otherwise, applications shall be reviewed based on available information.
The amount of fine for a concentration/concerted actions implemented without clearance shall not exceed UAH 51 000 (approximately EUR 1 600 as of the date of the Guidelines) in case the application was filed in accordance with the Guidelines and the concentration/concerted actions did not lead to monopolization, significant restriction of competition and the concentration is not prohibited under the Law of Ukraine “On Sanctions”.
The amount of fine for a concentration/concerted actions implemented without clearance shall not exceed UAH 340 000 (approximately EUR 11 500 as of the date of the Recommendatory Clarifications) in case there are no grounds to prohibit such concentration/concerted actions and the parties failed to submit an application in terms stipulated by the Guidelines (without objective and substantiated reasons).
The above fines are not applicable, should the parties have failed incorrect/untrue information.
The amount of fine for a concentration/concerted actions implemented without clearance shall be the maximum prescribed by the law (up to 5% of the entity’s turnover for the last year), in case the Russian Federation or their citizens supporting military aggression against Ukraine are UBO of at least one of the participants or in case the AMC has substantiated suspicions that the transaction’s goal is withdrawal of assets/shares to evade sanctions.