An important law for antitrust reform has been adopted. What will change?

On August 9, 2023, the Ukrainian Parliament adopted the Law on Improving the Activities of the Antimonopoly Committee of Ukraine. The respective law is the first significant step toward competition reforms and Ukraine's European integration. In particular, the main changes concern the following:

Merger control:

a.      acquisition of shares (corporate) rights that ensure the achievement of 25 percent or more of the votes in the company's highest management body is not a concentration unless such acquisition results in the establishment of control;

b.      establishment of a joint venture requires prior AMCU approval only if such JV will independently carry out full functional economic activity for an extended period;

c.       the turnover/assets of the seller with whom control relations are terminated as a result of the concentration are not taken into account if the target (and the legal entities controlled by such target) has no assets and at the same time did not carry out economic activity on the territory of Ukraine during the last two financial years and in the current year;

d.      acquisition control by financial institutions or institutions that carry out activities with securities (for further resale) and acquisition of control by banks due to collection of collateral does not require prior AMCU approval but shall be notified accordingly.

Strengthening of AMCU powers:

e.      AMCU has the power to impose penalties not only on the direct violators but also on their controlling companies;

f.        the law envisages the right of the AMCU to issue enforcement orders regarding its decisions without court involvement;

g.       AMCU received access to state information systems and registers, including those containing information with limited access; the possibility of access to bank data;

h.      the law introduced a settlement procedure and, as a result, the opportunity for the violator to obtain a 15% reduction of the fine;

i.        changes include reducing the amount of the fine for participants of anti-competitive concerted actions who reported such actions and contributed to the investigation of the case;

j.        the law strengthens evidence-gathering powers, including inspections and collection/seizure of evidence. At the same time, any inspection can be carried out only based on the commercial court's decision.

Further steps of the reform, in particular issues regarding the separation of investigative and decision-making functions; definition and determining the abuse of a monopoly position and anti-competitive concerted actions; procedure for applying and calculating penalties (including periodic penalties), etc., are expected to be considered by the Ukrainian Parliament still in 2023.