1) Is a merger control regulation in force?

Yes. Merger control regulation was introduced in Part V and furthermore in Part VI of the Law of Ukraine on Protection of Economic Competition (the Ukrainian Competition Law) in 2001.

2) Which authorities enforce the merger control regulation?

The Antimonopoly Committee of Ukraine enforces the Ukrainian Competition Law including the merger regulation contained therein.

The Cabinet of Ministers of Ukraine may grant a permit to a merger which has not been cleared by the Antimonopoly Committee of Ukraine, providing that positive effect of the transaction on public interests prevails over the negative effect from competition restriction.

Decisions of the Antimonopoly Committee of Ukraine may be appealed to commercial courts.

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Part V and Part VI of the Ukrainian Competition Law. More detailed rules may be found in various executive orders. Links to the relevant legislation, guidelines and forms are listed here:

4) Does general competition regulation apply to mergers or ancillary restrictions?

Restrictions of competition that are ancillary to the merger, for instance a standard non-competition obligation on the seller, are considered as concerted practices, and may require separate non-compete approval from the Antimonopoly Committee of Ukraine, in case they cover territory of Ukraine. 

5) May an authority order a split-up of a business irrespective of a merger?

Yes. The Antimonopoly Committee of Ukraine may order a split-up of a business in connection with an abuse of dominance case, i.e. irrespective of a merger.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Financial institutions

Mergers involving banks require approval from the National Bank of Ukraine. Mergers involving other financial institutions such as insurance companies, credit institutions, investment funds and companies require approval from the National Financial Services Commission. Along with that, however, such mergers are subject to approval from the Antimonopoly Committee of Ukraine.

Foreign investment control:

Ukraine does not have a foreign investment control regulation.

7) Are any parts of the territory exempted or covered by particular regulation?

The Ukrainian Competition Law covers whole territory of Ukraine.

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the thresholds are met.

9) Is there a general definition of transactions subject to merger control?

The Ukrainian Competition Law contains exhaustive list of the transactions which are defined as a “merger” and are subject to merger control:

1. Merger, take over.
2. Acquisition of direct or indirect control over an undertaking or a part of an undertaking, including through:
   • acquisition of assets that comprise business;
   • appointment of business officials, if the same persons already hold management positions in other undertakings;
   • entering into agreements conferring the possibility to exercise decisive influence; or
   • acquisition of shares, ensuring control (including achievement or exceeding 25% or 50% of voting rights).
3. Establishment by two or more undertakings of a new joint venture, if such joint venture will independently carry out full functional economic activity for an extended period.

10) Is "change of control" of a business required?

Generally, a merger will be considered to take place if the transaction results in establishment or change of control over a business.

11) How is “control” defined?

Within the meaning of Ukrainian merger control legislation “control” is defined as ability to exercise decisive influence on the business activities of an undertaking.

The decisive influence of one undertaking over another is presumed to exist when an undertaking directly or indirectly:

1. holds or manages more than 50% of the shares or voting rights in another undertaking;
2. is authorized to appoint the chief executive officer, a deputy chief executive officer, or more than 50% of the members of corporate boards of another undertaking; 
3. is intitled to receive at least than 50% of profit of another undertaking; or
4. is otherwise able to exercise decisive influence on the business activities of another undertaking. 

Control may be held by one or more persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitute change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its share to a third party.

Establishment of control, either sole or joint, as well as change of control from joint to sole, and vice versa, requires merger clearance in Ukraine.

12) Acquisition of a minority interest

In case acquisition of a minority interest confers someone with de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer is provided with veto rights regarding decisions that are essential for the strategic behaviour of the business or if the remaining shares are spread over a large number of shareholders and the acquired shares de facto confer the buyer with a decisive influence on general meetings.

13) Joint ventures/joint control – which transactions constitute mergers?

The following transactions regarding businesses subject to joint control may be subject to merger control:

1. Establishment of a joint venture;
2. Establishment of joint control;
3. Change from joint to sole control and vice versa.

Establishment of a joint venture can be considered as a merger (as stated above), or as concerted practices, if such joint venture will not independently carry out full functional economic activity for an extended period. In case establishment of such joint venture leads to coordination of competitive behaviour between parents or parents and the joint venture it may require separate antitrust clearance from the Antimonopoly Committee of Ukraine.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

A merger notification must be filed when the following thresholds are met:

Test 1

1. Combined worldwide turnover or value of assets in the last financial year of all parties to the concentration exceed EUR 30 million; AND
2. Turnover or value of assets in Ukraine of at least two parties exceed EUR 4 million in the last financial year.

OR

Test 2

1. At least one party had turnover or value of assets in Ukraine in the last financial year exceeding EUR 8 million, AND
2. Worldwide turnover of one other party exceeded EUR 150 million in the last financial year.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

Please the turnover threshold above, which concerns both turnover and assets requirements (except for threshold 2) of the Test 2).

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions.

16) Rules on calculation and geographical allocation of turnover

All figures shall be based on the immediately preceding financial year, and must be converted to EUR based upon official exchange rate fixed by the National Bank of Ukraine for 31 December of that year.

In either case, parties to a merger should be considered at their group levels. It means that as a general rule assets or turnover of a seller group should be counted towards a target. However, seller’s turnover/assets are excluded if: (i) target has no assets in Ukraine, and (ii) target was not (for two years) and is not active in Ukraine, and (iii) relations of control with seller are terminated.

Where two or more shareholders jointly control the undertaking concerned, its turnover shall be apportioned equally amongst the shareholders regardless of the amount of shares held.

Two or more transactions taking place within two years (between the same parties and which may affect the same or adjacent market) shall be treated as one concentration

The turnover figures should be used excluding VAT and other turnover-based taxes and contributions. Revenues generated via intra-group sales should not be counted, if such statistics on intra-group sales is reported. 

From a geographical standpoint, there is no guidance about allocation of turnover for the purposes of the 'local presence' test. However, in practice, revenues are generally attributed by a customer's location. For either party to meet this test, supplies from abroad (to Ukrainian customers) will also suffice.

Is the seller/seller’s group turnover relevant in a standard acquisition of sole control?

Yes, as a general rule assets or turnover of a seller group should be included in the calculation of the turnover of target. However, seller’s turnover/assets are excluded if: (i) target has no assets in Ukraine, and (ii) target was not (for two years) and is not active in Ukraine, and (iii) relations of control with seller are terminated.

17) Special rules on calculation of turnover for particular businesses

Commercial banks

Special rules apply to calculation of turnover/assets of commercial banks: a tenth of a bank’s assets should be considered for the purposes of both the assets and the turnover threshold.

Insurance undertakings
For the purposes of the turnover calculation - the revenues from insurance activities of the insurance company should be considered; for the purposes of the assets value calculation - its net assets should be used.

18) Series of transactions that must be treated as one transaction

N/A

Each step of a multistep transaction, in case it falls under definition of a merger (see topic 9), formally requires separate merger clearance; i.e. establishment/acquisition of SPVs in order to implement a transaction can result in a separate merger, if the thresholds are met. In assets deals parties should notify each asset or a part of asset which constitutes a separate business (in acquisition of pharmaceutical businesses for example). 

19) Temporary change of control

If the thresholds are met, merger filing is required regardless of whether control is temporary or on a lasting basis.

20) Special industries, owners or types of transactions

The Ukrainian Competition Law specifies that there is no obligation to file a merger notification in the following situations: 

1. Establishment of a new joint venture, if such joint venture will not independently carry out full functional economic activity for an extended period. In case such establishment of a joint venture leads to coordination between the owners or between the owners and the joint venture as object or effect, such actions are considered as concerted practices and may instead require separate antitrust clearance from the Antimonopoly Committee of Ukraine.
2. Acquisition of shares in an undertaking by a financial institution for the purposes of further resale of such shares within one year (the term may be extended on the request of the parties), providing that the acquirer does not exercise voting rights in governing bodies of such undertaking. Such action requires separate notification to the AMCU.
3. Intra-group transactions, providing that control relations within the group were previously established in compliance with merger control rules.
4. Acquisition of control over an undertaking or a part of an undertaking by a professional who has powers under current insolvency legislation to deal with and dispose of the undertaking.
5. Acquisition of assets or shares in an undertaking by a bank or financial institution by way of enforcement of pledge or other security, in case such acquisition is provided for in restructuring plan which is approved in accordance with the Law of Ukraine "On Financial Restructuring"; and providing further sale of such assets or shares by a bank or financial institution to non-related party within two years.  
6. Acquisition of control by banks due to collection of collateral does not require prior AMCU approval but shall be notified accordingly.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities, but a simplified procedure may be available if there is no overlap (see topic 33).

23) Other exemptions from notification duty even if thresholds ARE met?

Please see topic 20.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes, merging parties may file voluntary even if the thresholds are not exceeded. 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

No.

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

N/A

28) Referral to another jurisdiction

N/A

29) May the merging parties request or oppose a referral decision?

N/A

30) Stage of transaction when notification must be filed

There is no specific deadline. The only requirement is that the transaction may not be implemented before the merger has been approved by the Antimonopoly Committee of Ukraine.

31) Pre-notification consultations

The Ukrainian Competition Law does not provide for the possibility of pre-notification consultations. 

The parties, however, may file a notification requesting preliminary conclusions of the Antimonopoly Committee of Ukraine on whether a merger is notifiable, or whether the clearance is likely to be granted or refused. Such notifications are considered under special procedure within 30 days and require a separate filing fee. 

Moreover, the parties may request preliminary consultations after submission of merger notification within the 15 days “preview” period (see topic 43).

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Mergers that are a consequence of acquisition on a public takeover bid must be notified no later than 30 days from the date when a winner is announced (this is not applicable for foreign bids however). The acquisition/takeover bid may not be implemented before approval from the Antimonopoly Committee of Ukraine has been obtained, in cases where such approval is required. There are no specific rules with respect to other acquisitions on stock exchanges. 

33) Forms available for completing a notification

There are two forms available: one for simplified notification and one for full notification. Both are available in Ukrainian versions only (see links under topic 3).

Simplified notification is possible in each of the following cases:

1. only one party is active in Ukraine, or 
2. parties' combined shares do not exceed 15% on horizontally overlapping markets; and parties' shares or combined shares do not exceed 20% on vertically related markets.

Note, however, that given the high workload and lack of resources, the Antimonopoly Committee of Ukraine has been recently reluctant to grant clearances under the simplified procedure. 

34) Languages that may be applied in notifications and communication

Ukrainian only.

35) Documents that must be supplied with notification

The following documents and data should be supplied with a merger notification whether simplified or full:

1. filing fee payment order;
2. group charts describing control relations between the parties before and after the merger;
3. data on the parties turnover and assets volumes (globally and in Ukraine) for the last financial year; 
4. data on the merger, including the information on the parties (with description of control relations), nature of the merger, description of principal activities of the parties (globally and in Ukraine) and financial aspects of merger;
5. data on relevant markets, including sales volumes, market shares of the parties, as well as information on competitors;
6. any documentation on which the parties have based their market definition and assessment of market shares;
7. PoAs authorizing representatives of the parties (should be apostilled or duly legalized);
8. copies of documents confirming the financial aspects of the concentration (annual report of the acquiring party; or in case the acquiring party receives external financial support– provide terms and conditions of such borrowings and documents confirming that such borrowings will not lead to any control relationship between the acquiring party and the lenders);
9. copies of the transactional documents;

A full notification in addition to the above should contain the following:

1. detailed economic analysis of the merger and its effect on the Ukrainian markets, including detailed information on parties’ activities on relevant markets, their market shares,information on competitors, suppliers and customers; any R&D activities; definition of entry barriers; vertical and horizontal links etc.   
2. certificates of incorporation or excerpts from commercial register of the parties (should be apostilled or duly legalized);
3. information regarding membership in associations;

All the documents supplied with a merger notification should be translated into Ukrainian. 

Along with that the parties are required to provide a USB flash drive with electronic version of the notification, including all the documents attached thereto.

36) Filing fees

The filing fee for both simplified and full notifications is UAH 42,500.

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited (see topic 39).

38) May the parties get permission to implement before approval?

No, notifiable transactions may not be implemented before approval.

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger.

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market.

There are no formal guidelines on what may be considered acceptable preparatory steps. In practice, during the preparatory period – before approval is obtained - the parties shall act independently and are subject to general antitrust rules and restrictions. This basically means that an acquirer may neither acquire control over the target nor have access to sensitive information before closing. 

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary cause of business" clause that prevents the target company from taking decisions outside the cause of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

To prevent infringements, the parties shall ensure that “ordinary course of business” clause do not lead to establishment of acquirer’s control over the target and involvement in target’s day-to-day business activity. 

41) Implementation outside the jurisdiction before approval – "Carve out"

Implementation of a transaction prior to the Antimonopoly Committee of Ukraineclearance (gun jumping) is not allowed on either a global or Ukrainian level. Formally, no carve-out arrangements are provided for by law. This means that, if the Antimonopoly Committee of Ukraine discovers that global closing of a transaction requires Ukrainian merger clearance, it is very likely that such closing will be treated by the authority as a violation even in case of some sort of contractual carve-out regarding Ukraine. 

Note however, that parties are not prevented from requesting the Antimonopoly Committee of Ukrainefor an earlier clearance. In such case, they may apply to the authority with a motion justifying the need for an earlier closing (e.g., a global nature of a transaction, obtained clearances in other jurisdictions, lack of any competition concerns in Ukraine, etc.). Notwithstanding that such option is not a common practice and there is no officially established procedure for submission and consideration of such requests, a well-grounded justification may still shorten the term of review. 

42) Consequences of implementing without approval/permission

The parties will be fined if the merger is implemented before approval is obtained. The amount of the fine will be fixed based on the nature, gravity and duration of the infringement, and the fine cannot exceed 5% of the parties’ turnover for the last financial year (i.e. statutory maximum fine)

Actual fines, however, are significantly lower. Under the Fining Guidelines basic fines in merger cases are: 

1. 10% of a turnover on relevant (and adjacent) Ukrainian markets – for failure to notify a concentration that results in monopolization or substantial restriction of competition;
2. between UAH 510,000 and 5% of a turnover on relevant (and adjacent) Ukrainian markets – for failure to notify a concentration that does not lead to monopolization or significant restriction of competition and/or has no impact on Ukrainian product markets; and
3. between UAH 170,000 and UAH 510,000 for failure to notify a concentration in case parties are active on non-overlapping and non-adjacent markets in Ukraine.

The above basic amounts are subject to possible further adjustment depending on aggravating or mitigating circumstances, effect of violation on competition, social importance of respective products and profitability of economic activity related to violation.

It should be noted, however, that the Fining Guidelines are non-binding, and in practice are not strictly followed by the authority.

Imposition of a fine by the Antimonopoly Committee of Ukraine does not release the parties from obtaining post-closing clearance for the transaction.

Furthermore, the merger may be prohibited and the Antimonopoly Committee of Ukraine may decide to split up the merged entity or take any other measures necessary to restore efficient competition.

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

It is assessed whether the merger will"lead to monopolization or substantial restriction of competition on the Ukrainian market or a significant part of it".

A range of factors may be taken into consideration, including market shares of undertakings concerned as well as concentration levels on relevant markets (including by means of HHI); possible anticompetitive effects; countervailing factors (buyer power and/or new market entries), as well as bankruptcy risks (i.e., conditions for using the "failing firm" defense), etc. 

45) May any non-competition issues be considered?

The Antimonopoly Committee of Ukraine will reject a notification in case a notified transaction is prohibited by Law of Ukraine on Sanctions, or involve individuals, undertakings, which are included in sanctions lists (these are the lists of sanctions against legal entities and private individuals which are related to the ongoing war in Ukraine).

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers. But if a newly established joint venture has coordination between the owners or between the owners and such joint venture as object or effect, it will be assessed as concerted practices. 

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If the Antimonopoly Committee of Ukraine expresses serious concerns about the merger, it is important that the parties enter into negotiations of possible commitments well before the expiry of the deadlines, as the authority will normally only consider an approval with conditions if the parties have offered commitments.

Commitments may take any form and they can be either structural or behavioural and with or without time limitations.

Structural commitments have priority, behavioral commitments are applied only in case structural obligations are excessive or impossible.

The authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, the Antimonopoly Committee of Ukraine may impose a fine (please see topic 42), prohibit the merger and order a separation of the businesses (in case the merged entity has a dominant position) or any other measure capable of restoring competition.

48) How and when will details about the merger be published?

The Antimonopoly Committee of Ukraine is obliged to publicize on its official website the non-confidential versions of the following documents:

1. decisions on merger and concerted actions notifications;
2. decisions on cases on infringements of competition legislation;
3. notices on initiation of Phase II investigation.

The above publications should be made within 10 working days after adoption of the respective decision or resolution. 

To protect business secrets, the parties may request the Antimonopoly Committee of Ukraine to keep specific information as confidential and must identify any confidential information in the notification (as a rule a separate motion for confidentiality is submitted together with the notification).

49) Access to the file for the merging parties and third parties

The merging parties:

Generally, the merging parties do not have access to the file. However, in cases on infringements of competition legislation, the parties may have access to a non-confidential version of some file documents.

Third parties:

Generally, third parties do not have access to the file. However, in cases on infringements of competition legislation, third parties may have access to a non-confidential version of some file documents.

50) Who can appeal and what may be appealed?

The merging parties and any third party with a legal interest can appeal any decision of the Antimonopoly Committee of Ukraine to commercial courts within 2 months from the receipt of the decision.

If the Antimonopoly Committee of Ukraine prohibits the merger, the Cabinet of Ministers of Ukraine may still grant a permit to such a merger, providing that positive effect of the transaction on public interests prevails over the negative effect of the restriction of competition, unless such restrictions caused by the merger is not necessary for achieving the purpose of the merger or jeopardizes the market economy system.