Amendments to Ukrainian Merger Control Rules
In early 2024, the newly adopted legislation on Ukrainian merger control entered into force.
Namely, on January 1, the updated Law "On Protection of Economic Competition" entered into force; on February 16, the respective amendments to Regulation on Concentration became effective.
In particular, the main amendments to the merger clearance procedure are the following:
1. Amended types of transactions considered as ‘concentration’
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;
establishment of a joint venture requires prior AMCU merger clearance approval only if such JV will independently carry out full functional economic activity for an extended period. Such establishments may still require approval for concerted actions.
2. Extended list of exceptions
acquisition of 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. Still, it shall be notified with the AMCU accordingly.
3. Amended definition of ‘party to concentration,’ group of companies,
state and municipal authorities that govern legal entities, assets, or shares which are the object of privatization, are considered as a party to concentration;
if the company of the participant group (party to concentration) exercises joint control over another company with a third person who does not belong to the participant group, the participant group includes such JV only. The other controlling shareholder and its controlled companies are not generally considered as the party to concentration.
4. Amended thresholds
Amended Test 2:
at least one party's turnover or value of assets in Ukraine exceeded € 8 million, and the global turnover of another party exceeded € 150 million in the last financial year (old law referred to the target or founding company)
Calculation of thresholds:
seller’s turnover/assets are excluded if: (i) Target has no assets in Ukraine, (ii) Target was not (for two years) and is not active in Ukraine, and (iii) relations of control are terminated;
where two or more shareholders jointly control the undertaking concerned, its turnover shall be apportioned equally amongst the shareholders regardless of the number 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.
5. The filing fee
filing fees have been increased from January 1, 2024, to UAH 42,500 (vs UAH 20,400). Approx. EUR 1 000.
6. Defined terms and procedures for Phase II case review
the term should not exceed (in total) 200 days from the filing date; after that, the AMCU either grants clearance or sends to the parties preliminary conclusions to prohibit the transaction;
if there are grounds to prohibit the transaction, parties may submit and communicate the remedies/commitments to the AMCU.
structural commitments have priority; behavioral commitments are applied only in case structural obligations are excessive or impossible;
the term for commitment negotiation is up to 100 days; after that, the AMCU grants conditional clearance or prohibits concentration.
In addition, the updated legislation:
provides for the updated procedure for obtaining preliminary conclusions regarding concentration;
defines the particular procedure for notifications of the acquisition of 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 (cases which are exempted from merger clearance under the updated rules);
specifies/improves the criteria for the fast-track procedure;
clarifies/extends the definition of "single property complex" (for the assets deals).