Merger Control 2024 Comparisons

The relevant merger control legislation in Ukraine includes the following:

• Commercial Code of Ukraine;
• Law on Protection of Economic Competition (the “Competition Law”);
• Law on the Antimonopoly Committee of Ukraine;
• Regulation on the Procedure for Consideration of Applications and Cases of the Concentration of Undertakings 2002;
• Methodology for Assessment of the Monopoly (Dominant) Position of Undertakings on the Market;
• Procedure for Calculating the Fines for Violation of Legislation on Protection of Economic Competition (the “Procedure on Fines”);
• Guidelines on the Assessment of Horizontal Mergers;
• Guidelines on the Assessment of Non-horizontal Mergers;
• Guidelines on Definition of Control;
• Guidelines on the Assessment of Joint Ventures (the “Guidelines on JV”); and
• Guidelines on the Application of the SSNIP test.

Sanctions

Under the Law of Ukraine on Sanctions and the Competition Law, the Antimonopoly Committee of Ukraine (AMC) will reject merger notifications or halt their review if:

• any of the parties or undertakings under their control is on the Ukrainian sanctions list; and
• a specific sanction applies to the parties or undertakings under their control (eg, a prohibition to sell shares or assets).

Other Restrictions

Foreign companies have limited or restricted abilities to make investments in certain sectors, but such limitations are not related to merger control.

The AMC is the primary state authority entrusted with ensuring protection of competition. The AMC reviews, clears and prohibits transactions (concentrations). If the AMC prohibits a concentration, the Cabinet of Ministers of Ukraine (CMU) may overrule that decision on public interest considerations. Judicial review is also available if the parties wish to appeal the AMC’s decision in courts.

Compulsory Notification

Notification is compulsory if the parties hit the jurisdictional thresholds (see 2.5 Jurisdictional Thresholds). The parties must obtain clearance before closing a notifiable transaction. Yet, the parties can make a voluntary notification even if they do not meet the jurisdictional thresholds (eg, when there are difficulties in obtaining relevant financial information).

No exceptions

Apart from transactions that do not qualify as concentrations, there are no other exceptions (see 2.3 Types of Transactions).

Financial Penalties for Failing to Notify

Failing to notify may result in a fine of up to 5% of the group’s worldwide turnover in the year preceding the fine’s imposition.

In practice, the fines seldom reach the statutory limit of 5%. When determining the base fine, the AMC should rely on the Procedure on Fines and can consider various factors such as the effect of the infringement on competition, the significance of the market, and the profitability of the economic activity related to the infringement. This may result in an increase or decrease of the fine. Furthermore, the AMC may additionally adjust the fine based on mitigating or aggravating factors.

Other Risks in Failing to Notify

Apart from financial penalties, the parties could potentially face any of the following adverse consequences:

• third-party damages claims;
• reputational damages;
• closer examination of future notifications; and
• invalidation of the transaction in some cases.

Recent Penalties

In 2023, the biggest fine for failure to notify was around EUR1.19 million, and the smallest fine for such infringement was around EUR2,015.

Publicity and Confidentiality

The AMC must publish non-confidential versions of decisions on infringement of the Competition Law. In addition, the AMC makes a brief press release regarding the adopted decision or resolution (including the parties’ identities, penalties and the case outcome).

Transactions Considered Concentrations

The Competition Law provides an exhaustive list of transactions defined as concentrations that may require prior merger clearance.

• The merger of at least two independent undertakings or the takeover of one undertaking by another.
• The acquisition of direct or indirect control over an undertaking or its part through:
1. the purchase or lease of its assets;
2. contractual arrangements allowing an undertaking to direct the business activities of the target undertaking, etc;
3. the acquisition of shares (or other equity stakes) with control rights attaching to them; and
4. appointments to management positions resulting in cross-directorship.

This list is open-ended, so any change in control over an undertaking (based on shareholders’ agreements, changes to articles of association, etc) may be caught.

• The creation by at least two undertakings of a new full-function undertaking that will independently conduct business activities on a lasting basis while its creation does not result in co-ordinating competitive behaviour between its parents or between the parents and the new undertaking.

Internal Restructurings, Reorganisations, and Other Exempted Transactions

Under the Competition Law, the following transactions are not considered concentrations and do not require notification and clearance as such.

• Intra-group transactions and reorganisations, provided that the control links within the group were established in compliance with the Ukrainian merger control rules.
• The creation of a new undertaking aiming at or resulting in the co-ordination of competitive behaviour of either its parents or the new undertaking and its parents. Such a transaction is considered a concerted practice and may require separate antitrust clearance.
• The acquisition of shares by a financial institution with the intention of reselling them within one year (extendable), provided that the financial institution refrains from exercising voting rights during the holding period.
• The acquisition of control over an undertaking or a part of it by a receiver or a representative of a state authority.
• The acquisition of an undertaking’s assets or shares by a bank or other financial institution under the restructuring plan, provided that such assets/shares are subsequently sold to a third party within two years from the acquisition date.
• The acquisition of an undertaking’s assets or shares by a bank or other financial institution as a result of foreclosure on collateral provided that (i) the acquirer refrains from exercising voting rights/utilising acquired assets during the holding period, and (ii) such shares/assets are subsequently sold to a third party within one year from the acquisition date (extendable).

Definition of “Control”

The Competition Law defines “control” quite broadly as the possibility of exercising decisive influence (including through veto rights) on an undertaking’s business activities. It is presumed that control exists where one undertaking directly or indirectly:

• holds or manages over 50% of shares in another undertaking;
• holds over 50% of votes in another undertaking’s highest governing body;
• has the authority to appoint CEO, deputy CEO, or more than 50% of the members of the supervisory board (the board of directors), etc;
• has the right to receive at least 50% of another undertaking’s profits; or
• exercises control over another undertaking in other ways (through charter documents, contractual arrangements, etc).

Ukrainian competition law distinguishes between:

• sole and joint control;
• negative and positive control; and
• de jure and de facto control;

Notably, standard minority shareholder protection rights generally do not confer control over the undertaking.

Minority non-controlling stakes can be caught

Acquisitions of minority stakes are caught if they ensure control (eg, on a contractual basis) over the relevant undertaking (see 2.3 Types of Transactions). A mere acquisition of a non-controlling minority shareholding does not require prior merger clearance.

A transaction that qualifies as a concentration requires merger clearance if the parties to the concentration hit one of the following jurisdictional thresholds:

• the combined worldwide value of assets or turnover of the parties exceeds EUR30 million, and the value of the Ukrainian assets or turnover of each of at least two parties exceeds EUR4 million; or
• the value of the assets in Ukraine or the Ukrainian turnover of a party exceeds EUR8 million and the worldwide turnover of at least one other party exceeds EUR150 million.

There are no special jurisdictional thresholds applicable to particular sectors. However, under certain conditions, the jurisdictional thresholds will not apply to transactions in the military sector (see 2.3 Types of Transactions).

Reporting Period

The value of assets and turnover is calculated for the financial year preceding the year of the concentration. For the calculation of jurisdictional thresholds, a series of transactions entered into by the same undertakings (or groups of undertakings) and affecting the same or adjacent markets within a two-year period is considered as one and the same concentration arising on the date of the last transaction.

Calculation Rules

The value of assets is based on book value. Special calculation rules apply for banking and insurance companies:

• one-tenth of the bank’s assets should be considered when calculating the turnover/asset threshold; and
• an insurance company’s net assets are relevant for calculating the asset threshold, while the revenues generated from insurance activities (including insurance premiums) are relevant for calculating the turnover threshold.

Sales and assets booked in a foreign currency should be converted into euros using the exchange rate set by the National Bank of Ukraine on the last day of the respective fiscal year.

Group-Wide Basis

All undertakings linked with parties to a concentration by control relationships (a group-wide basis) are relevant for the purpose of calculating the jurisdictional thresholds. Therefore, a group-wide basis is based on the concept of control (see 2.4 Definition of “Control”).

Attribution of JV’s Assets/Turnover

For purposes of calculating jurisdictional thresholds, a JV’s assets/turnover should be evenly distributed among its controlling shareholders regardless of the number of shares/votes they hold. However, the full turnover/value of assets of a co-controlling JV shareholder should be attributed to the JV.

Disregard Non-controlling Interests

Turnover or assets figures of non-controlling interests are not taken into consideration when determining the turnover or assets for the purpose of jurisdictional thresholds calculation.

The Seller May Remain Relevant

The selling party’s assets and turnover can only be excluded from the target group’s performance if the target possesses no Ukrainian assets, has no current operations in Ukraine, and has not been active there during the two preceding financial years. Yet, the wording of the relevant provisions is vague, so even a one-time operation can be considered an activity in Ukraine, setting the bar for excluding the selling party’s financials quite high.

Consideration of Business Structure Changes

Changes in the business during the reference period (such as other acquisitions, divestments or business closures) are generally reflected in the calculation of jurisdictional thresholds. If business entities were sold or closed, they should not be considered in the calculation of the jurisdictional threshold. Similarly, if a party acquired another undertaking during the reference period, the assets and turnover of such an undertaking should be considered for the jurisdictional threshold.

Foreign-to-foreign transactions are subject to merger control if the parties hit the jurisdictional thresholds. Therefore, a transaction with no reasonable nexus to Ukraine (ie, with no local presence, effects, or sales/assets) may still be caught if it meets the jurisdictional thresholds.

The only exception during martial law is defence/military-related transactions. Jurisdictional thresholds do not apply to the concentration if such a deal meets the following conditions:

• it is conducted outside Ukraine;
• it is aimed at the development of technologies and production of military and dual-use goods;
• the final recipients and/or purchasers of the products and technologies are the Armed Forces of Ukraine or law enforcement/military agencies in Ukraine;
• the products and technologies are either not developed or produced in Ukraine, or their production levels are insufficient; and
• an acquirer is active in the military sector or produces/develops dual-use goods.

Ukraine does not have a market share jurisdictional threshold.

Concentration or Concerted Practice?

Under the Competition Law, the creation by two or more undertakings of a new full-function undertaking that will independently pursue business activities on a lasting basis qualifies as a concentration, unless such creation results in the co-ordination of competitive behaviour either of its parents or of the new undertaking and its parents.

Under the Competition Law and the Guidelines on JV, joint ventures have to meet the full-functionality criterion, meaning they must be able to perform all functions of an autonomous economic entity, to be considered concentrations.

There are no special rules for determining whether joint ventures meet the jurisdictional thresholds (see 2.5 Jurisdictional Thresholds).

In general, the AMC cannot investigate a transaction that does not meet jurisdictional thresholds. However, the AMC does constantly monitor the public domain and can make inquiries to check merger control compliance.

The limitation period for the AMC to take action in relation to mergers is five years from closing.

The implementation of a transaction must be suspended until clearance.

See 2.2 Failure to Notify.

There are no general exceptions to the suspensive effect. The suspension effect applies globally, and the Ukrainian merger control rules do not provide for any possibilities to obtain individual waiver or derogation from the suspensive effect.

Closing prior to clearance constitutes an infringement of the Ukrainian merger control rules. As described in 2.14 Exceptions to Suspensive Effect, the suspensive effect applies globally. Simply carving out the Ukrainian business or assets and proceeding with global closing will not absolve parties of liability.

Yet, the AMC may consider ring-fence or hold separate arrangements as a mitigating factor when determining the amount of a fine. It is crucial for parties to inform the AMC in advance about any carve-out arrangement before closing and provide a detailed explanation of how it will work.

In general, there are no deadlines for notification. Obtaining merger clearance before closing is the only requirement.

If a concentration is carried out through auctions or similar methods, the parties can make the notification before or after the start of the auction but no later than 30 days from the date of announcing the winner. However, the Competition Law does not provide liability for missing such a deadline.

A binding agreement is not required prior to notification. Parties can file on the basis of a less formal agreement (eg, a draft of transactional documents, letter of intent or memorandum of understanding) as long as such a document sufficiently outlines the key terms and conditions of the transaction.

The filing fee is UAH42,500 per notifiable event (around EUR1,000). Multiple notifications may be necessary depending on the transaction’s structure. The filing fees must be paid before notification.

The buy-side and the sell-side are jointly responsible for filing. The following undertakings can act as the applicants depending on the transaction structure:

• the acquirer and the target;
• the controlling parents of the acquirer and the target;
• the founders of the joint venture; or
• the controlling parents of the merging undertakings.

In the case of a hostile takeover, the AMC may agree to accept a notification submitted by one of the parties.

The information and documents required for filing depend on the review procedure.

For the simplified review procedure:

• filing fee payment orders;
• information on the parties’ worldwide and Ukrainian activities, indicating undertakings that are active and/or registered in Ukraine;
• a description of the transaction structure, indicating the transaction stages and the timeline for their implementation;
• information on merger clearance sought or granted in other jurisdictions;
• parties’ asset and turnover data globally and in Ukraine for the previous financial year;
• for the relevant markets, value and volume-based sales and market share data, indicating competitors and their estimated market shares on overlapping markets for the preceding three years and, in practice, the latest reporting period;
• corporate structures of parties to a concentration before and after closing;
• a description of the source of funds and documents:
1. confirming the availability of own funds to pay the consideration (eg, financial statements, excerpts from a bank account); and
2. confirming that the lender does not acquire control over the borrower as a result of the financing arrangement (eg, loan agreement);
• PoAs from the notifying parties (notarised and apostilled or legalised); and
• a draft or copy of transactional documents (share purchase agreements, shareholders’ agreements, memorandums of understanding, etc).

For the standard review procedure (in addition to the items mentioned in the list above):

• a detailed feasibility study of the concentration’s effect on the Ukrainian markets;
• information regarding parties’ membership in associations and their constitutional documents; and
• parties’ excerpts from the trade register or similar (notarised and apostilled or legalised).

Confidential information must be clearly labelled for appropriate treatment by the AMC.

The filing must be submitted in Ukrainian language. Extracts from trade registers and PoAs of foreign undertakings must be notarised and apostilled or legalised. Documents in a foreign language must be provided with a certified translation into Ukrainian.

Parties must submit a hard copy and an electronic version (PDF, Word document, etc) of the notification and all attached documents on a flash drive.

If any necessary information/document is absent at the outset, the AMC may either ask for it during the review process or give a notice of incompleteness within the 15-day preview period. The parties will then have to file again, including the missing information/documents. In this situation, the AMC will not impose any penalties.

Providing wrong or false information in the filing, subject to adjustments taking into account any aggravating or mitigating factors, may lead to a penalty of up to 1% of the relevant party’s revenue from the year preceding the fine’s imposition. The AMC may further adjust this amount, taking into account any aggravating or mitigating factors. In addition, the AMC may reconsider its decision if it was based on misleading information.

If the parties do not provide requested information during the Phase II review, the AMC may close a merger case without ruling on the essence. The parties have the option to resubmit their application.

See 3.6 Penalties/Consequences of Incomplete Notification.

The phases of the review process are as follows.

Standard Review Procedure

Preview period

The AMC will take up to 15 calendar days to evaluate whether the notification is complete and can proceed for substantive review (Phase I). If the AMC considers the notification incomplete, the regulator may reject it. In this case, the parties would need to file again, supplementing the original notification with the missing information.

During the preview period, the AMC asks follow-up questions that do not suspend the 15-day preview period. Generally, parties have several days to provide the requested information (see 3.10 Requests for Information During the Review Process).

Substantive review (Phase I)

The AMC will take up to 30 calendar days to evaluate whether to approve the concentration or if there are grounds to prohibit it. If there are potential grounds for prohibition, Phase II will begin.

In-depth review (Phase II)

The Phase II review entails a meticulous evaluation of the transaction and the related competition issues, as well as a thorough scrutiny of expert opinions, consumers’ and competitors’ views, and any other supplementary information. The AMC will publish information on the commencement of the Phase II review on its website. Third parties (eg, competitors, customers/consumers, suppliers), which believe that the transaction may significantly affect their interests, may give the AMC their reasoned opinions on why the transaction should be prohibited. Furthermore, the AMC commonly conducts surveys among consumers and customers, as well as requesting information from third parties and public authorities, to gather their opinions on how a potential transaction may impact them or relevant markets.

It is recommended that the Phase II review period should not exceed three months from the day the parties provided exhaustive information the AMC asked for in the Phase II notice. If required, the parties may request an extension of the review period. However, any request made by the AMC will pause the review period.

Simplified Review Procedure

A transaction may be eligible for a 25-day review procedure if either:

• only one party is active in Ukraine; or
• the parties’ combined shares do not exceed 15% in the relevant market and 20% in vertically related markets.

However, in practice, the AMC applies the simplified review procedure where only one party is active in Ukraine or none has a market share over 15% in any product market, whether relevant or not.

Overall Timeline for Clearance

In unproblematic transactions, the parties should expect merger clearance within:

• 45 calendar days from the filing date under the standard review procedure; or
• 25 calendar days from the filing date under the simplified review procedure.

Typically, the AMC takes the entire review period to evaluate a transaction and adopts a decision during the last week leading up to the deadline. However, in practice it is possible to request a quicker review, though there is no formal procedure.

In addition, if the AMC fails to adopt a decision regarding the concentration before or on the date that the Phase I or Phase II period ends, it will be assumed that clearance has been granted by tacit consent. Normally, the AMC provides formal clearance.

Ukrainian competition law does not provide for pre-notification discussions with the AMC. Yet, informal discussions are usually possible and encouraged in complex mergers. Such discussions can be held on a no-name basis, if necessary.

Requests for information are common during the preview period and the Phase I review. Although such requests are not typically burdensome, the AMC tends to set tight deadlines since the requests do not stop the clock or suspend the review.

Under the Competition Law, Phase II may last up to three months after the AMC receives all the necessary data. This period can be extended if additional documents, information or expert opinions are needed. However, in practice, Phase II should not take more than three months from the day the parties provided exhaustive information the AMC asked for in the Phase II notice.

See 3.8 Review Process.

Under the Competition Law, the AMC will clear a transaction if it does not lead to monopolisation (achievement or strengthening of a dominant position in the market) or a substantial restriction of competition in the Ukrainian market or a significant part of it. Otherwise, the AMC will prohibit such a transaction unless the parties offer sufficient remedies.

A rebuttable presumption of dominance exists where:

• a single undertaking holds more than 35% of the market share;
• the two or three undertakings with the highest market shares combined hold more than 50% of the market share; and/or
• the four or five undertakings with the highest market shares combined hold more than 70% of the market share.

Under Ukrainian competition law, the relevant market is defined as a market on which a concentration of undertakings takes place, and it will be affected or can be affected by such a concentration. The relevant market combines the product market and the geographic market, defined as follows:

• a relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer by reason of the products’ characteristics, their prices and their intended use; and
• a relevant geographic market comprises the area where there are buying and selling relations and consumers (customers) can easily satisfy their demand for a particular product under normal conditions. The geographic market may encompass a state, region, district, city, or their parts.

The Methodology for Assessment of the Monopoly (Dominant) Position of Undertakings includes a detailed list of steps to determine the relevant market in a merger case. If the AMC is unable to define the market boundaries with this approach, the regulator will use the SSNIP test.

However, in practice, the AMC typically accepts the relevant product market definition proposed by the notifying parties unless it is unreasonably broad or outrightly incorrect. At the same time, the AMC generally prefers a narrower definition for the relevant product market, focusing on the core business activities of the parties.

The AMC may take into account case law of the EU Commission or other international competition authorities if the AMC lacks the necessary experience in a particular market.

Under the Guidelines on the Assessment of Horizontal Mergers, the AMC will evaluate whether a concentration may:

• eliminate important competitive constraints on one or more firms, which consequently would have increased market power (non-coordinated effects); and/or
• change the nature of competition in such a way that firms that previously were not co-ordinating their behaviour, are now significantly more likely to co-ordinate and raise prices or otherwise harm effective competition (co-ordinated effects).

Under the Guidelines on the Assessment of Non-horizontal Mergers, the AMC will evaluate whether a concentration may:

• raise the costs of downstream rivals by restricting their access to an important input (input foreclosure);
• foreclose upstream rivals by restricting their access to a sufficient customer base (customer foreclosure);
• reduce rivals’ abilities or incentives to compete by combining products in closely related markets to leverage a strong market position from one market to another by means of tying or bundling practices; and/or
• increase the possibility of tacit co-ordination.

The AMC may consider economic efficiencies when reviewing a notification, but such arguments are unlikely to be decisive. At the same time, the CMU considers economic and other practical efficiencies when deciding whether to allow a transaction that the AMC has previously prohibited. The CMU will clear a transaction if the benefits to the public outweigh the negative impact on competition, except when the competition restriction is not necessary for the concentration’s goal, or it threatens the market economy system.

In general, the AMC should not take into account any non-competition issues as part of the review process. Sometimes, the AMC may scrutinise a transaction more closely if it takes place in a strategic sector (eg, in the defence industry) or involves an undertaking having a sanctioned person in its corporate structure (even non-controlling shareholding by such person may raise the regulator’s concerns). However, ultimately, the AMC must clear a transaction if it does not lead to monopolisation or significant restriction of competition.

At the same, the AMC will not review any transaction if Ukrainian sanctions apply to the parties of such a transaction (see 1.2 Legislation Relating to Particular Sectors).

Currently, Ukraine does not have an FDI regime in place.

There are no special considerations in the substantive review of joint ventures. However, if the creation of a JV results in the co-ordination of competitive behaviour, such a JV is considered as a concerted practice and will be assessed accordingly.

The AMC can prohibit a concentration if it leads to monopolisation or a substantial restriction of competition in the Ukrainian market or a significant part of it.

The parties may offer structural or behavioural remedies to remove or mitigate the negative impact of the concentration on competition during the Phase II review. Statistically, the AMC imposes behavioural remedies in the majority of cases. However, starting in 2024, structural remedies will take precedence over other types of remedies.

Conditional approvals often involve the imposition of reporting obligations that enable the AMC to oversee and ensure compliance. In essence, the remedies are not aimed at addressing non-competition issues.

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 implementation should be reasonable. Additionally, the parties 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 suggested remedies are appropriate. Afterwards, the authority assesses the remedies’ potential to eliminate possible harm to competition.

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 period (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 parties 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.

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 outlined in the decision issued by the AMC following closing. Usually, behavioural remedies have a duration of three to five years. In a recent case, the AMC imposed structural remedies and granted the parties a one-year compliance period for their commitments.

Failure to comply with the remedies is an infringement of the Competition Law and can lead to severe penalties and consequences. The AMC may impose a penalty of up to 5% of the party’s turnover for the last financial year preceding the fine’s imposition. Moreover, non-compliance with remedies may trigger a review of the approved transaction, and, in the worst case, it could lead to the prohibition of the transaction altogether.

In most cases, the AMC issues a formal decision permitting or prohibiting a transaction to the parties. The AMC must publish non-confidential versions of its decisions on merger and concerted practices cases within ten business days of the decision date. Additionally, the AMC publishes a summary of the decision on its website, including the parties involved and the main points of the decision.

Behavioural Remedies

As a matter of practice, the AMC usually clears most transactions unconditionally. In more complex cases, the AMC issues approvals subject to certain behavioural commitments. For example, out of all merger cases in 2022 and 2023, only six and four, respectively, were cleared subject to parties undertaking behavioural commitments, while only one case was closed without a decision on the merits. These commitments have involved prohibiting unjustified refusal of service, ensuring equal terms for equivalent transactions, and forbidding market information exchange for three to five years.

Structural Remedies

Notably, on 15 August 2023, the AMC required Advent to sell one of Gfk’s market research businesses as a structural remedy. The AMC considered that the transaction would raise concerns in the Ukrainian markets for retail measurement services (RMS) for fast-moving consumer goods and consumer panel services (CPS). In particular, the AMC found that Advent would likely have bundled its CPS with RMS for fast-moving consumer goods, foreclosing competitors in both markets.

Merger clearance will not cover related arrangements (ancillary restraints). Ancillary restraints may require separate antitrust clearance. Antitrust notifications are usually filed and reviewed simultaneously with merger notifications.

During the review process, the AMC may involve third parties such as competitors, suppliers, consumers and experts if the decision on the transaction may significantly impact the rights and interests of such third parties. This typically occurs during Phase II. The AMC operates independently in making its decision, which is later communicated to the notifying parties. Third parties are permitted to submit their observations, specifically regarding the transactions and their impact on the market. These observations are then added to the case as evidence and must be taken into account when the AMC reaches a decision.

Third parties have the right to review filing materials (except for confidential information), provide evidence, and submit comments, objections or proposals. Furthermore, they can request a copy of the AMC’s decision regarding the transaction and have the right to appeal against that decision.

The AMC typically contacts third parties during the Phase II review by sending out a written request for information or documents. The AMC will set deadlines for provision of the requested information. The AMC may impose penalties on a third party for non-compliance with the request.

The AMC will “market test” remedies offered by the parties.

On the publication of the AMC’s decisions, see 5.6 Issuance of Decisions.

Automatic confidentiality does not apply to any information. However, parties may request confidentiality and provide a valid justification for it. In such cases, a non-confidential version of the information must also be provided. If the justification is not satisfactory, the AMC will reject the request for confidentiality. In practice, the AMC typically satisfies confidentiality requests, so commercial information, including business secrets, will be kept confidential.

The AMC typically co-operates with other competition authorities through bilateral treaties. In addition to exchanging information about ongoing or past cases, the AMC may engage in broader co-operation with these authorities, such as co-operating on updates to competition legislation. The AMC also works with international organisations such as the Organisation for Economic Co-operation and Development, the UN Conference on Trade and Development, and the International Competition Network.

The AMC does not have to seek the parties’ permission to share information with other jurisdictions. However, the AMC should ask for the parties’ permission before sharing confidential information.

If the AMC prohibits the concentration, the CMU may still grant clearance. The CMU will clear a transaction if the benefits to the public outweigh the negative impact on competition, except when the restriction is not necessary for the concentration’s goal or it threatens the market economy system.

The parties can also challenge the AMC’s decisions in commercial courts.

The parties can file an appeal to the CMU within 30 calendar days from the decision date. However, there are no publicly available cases where the CMU granted clearance for a concentration that was prohibited by the AMC.

The parties can file an appeal to a commercial court within two months of the date of receipt of the decision. Court decisions can be appealed within 20 days. Unsuccessful appeals can be brought to the Supreme Court.

Courts may consider relevant claims:

• up to 135 calendar days at first instance;
• up to 65 calendar days at appeal; and
• up to 80 calendar days at cassation.

However, these terms are not always followed due to various administrative reasons. There is no public record of successful appeals against AMC clearance decisions.

Third parties have the right to challenge a clearance decision by the AMC in commercial courts. However, there are no publicly available cases of any such appeal being successful.

Currently, Ukraine does not have foreign direct investment or foreign subsidies legislation that may require separate filings for transactions beyond that which is necessary under merger control law.

A new law has been enacted to exempt certain transactions in the military/defence sector from mandatory notification during martial law and within 90 days from the date of its termination. For more details, please see 2.8 Foreign-to-Foreign Transactions.

In 2023, the AMC identified 41 failures to notify. The total penalties amounted to EUR2,220,000. In comparison, in 2022, the AMC identified 28 failures to notify. The total penalties amounted to over EUR266,000.

On remedies and other statistics, see 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions.

It is expected that the AMC will be focusing, in the foreseeable future, on the following:

• petroleum products;
• railway rolling stock components;
• socially important goods;
• pharmaceuticals;
• procurements in the construction and energy sectors;
• reinforcing the AMC’s role; and
• co-operation with the EU’s antitrust watchdog and the OECD.