Despite martial law in Ukraine, businesses planning to carry out concentrations and/or concerted practices are not exempt from the obligation to obtain a relevant prior approval of the Antimonopoly Committee of Ukraine (“AMCU”), if such an approval is required by law.
On 30 March 2022, the AMCU provided guidelines (“Guidelines”) that determine:
- a simplified procedure for the preparation and submission of an application for approval of concerted practices/concentration (“application”);
- particularities of the application review process; and
- recommended approaches for the AMCU bodies in setting fines for the infringement of merger control/concerted practices rules,
during martial law.
Simplified procedure for preparation and submission of application
The AMCU allowed submitting the application in a simplified form. In particular, applicants may choose not to provide information on relevant markets, a feasibility study and not to follow some other formalities.
At the same time, the applicants must provide information on individuals or legal entities – residents of russia, belonging to their business groups, including cases where shares or participatory interests in such legal entities are directly or indirectly owned by russia, and related legally capable individuals (spouses, parents, children, siblings).
Procedures for submission and consideration of application
The application must be submitted at least 15 calendar days before the implementation of concentration/concerted practices. The AMCU allows the applicants to submit the application and supporting documents by e-mail, if the submission of hardcopies is impossible.
The AMCU will suspend the consideration of the application within 15 calendar days from the receipt date.
Within three months after martial law is lifted, the applicants should supplement the application with additional documents, which are usually required by the law.
After receiving such additional documents, but not later than three months after martial law is lifted, the AMCU will resume the consideration of the application taking into account the additional documents. If the applicants do not provide additional documents, the AMC will review the application based on the available information and decide whether to accept the application for the substantive appraisal or return it due to the lack of necessary information and documents.
Responsibility for implementation of concentration/concerted practices without obtaining prior mandatory approval
The AMCU proposes to significantly reduce the fines for concentration/concerted practices implemented without the regulator’s mandatory prior approval during martial law.
- If a merger control/concerted practices notification was submitted in compliance with the Guidelines and there were no grounds for the prohibition of a concentration/concerted practices, the fine should amount up to UAH 51,000 (approximately USD 1,800);
- if there were no grounds for the prohibition of the concentration/concerted practices, but the respective application was not submitted to the AMCU, the fine should amount to up to UAH 340,000 (approximately USD 11,600); and
- regardless of the submission of the application: if the ultimate beneficial owner(s) of one of the participants to the concentration is russia or russian citizens, who supported the military aggression against Ukraine, or if the AMCU reasonably suspects that the concentration is aimed at avoiding international sanctions against assets/participatory interests/equity interests imposed for military aggression against Ukraine – the fine will be set at the maximum amount provided by the Law of Ukraine “On the Protection of Economic Competition”.
