Requirements to concentration filings changed
Dentons, Kyiv, Ukraine,
Thu, May 19, 2016
On 18 May 2016, the Law of Ukraine “On Amendments to the Law of Ukraine ‘On Protection of Economic Competition’ concerning the increase of efficiency of control over economic concentrations” adopted by the Parliament of Ukraine on 26 January 2016 (the Law) came into force.
The Law establishes:
New and higher thresholds which, once satisfied, require prior concentration approval by the Anti-Monopoly Committee of Ukraine, in particular when:
The aggregate value of assets or aggregate sale turnover of the goods of participants in concentration, taking into account relations of control, in the preceding financial year, including outside of Ukraine, exceeded the amount being the equivalent of €30 million, wherein value (aggregate value) of assets or sale turnover (aggregate turnover) in Ukraine of at least two participants in concentration, taking into account relations of control, each exceeded the amount being equivalent to €4 million; or
The aggregate value of assets or sale turnover of goods in Ukraine of the undertaking with respect to which a control is being acquired or the undertaking whose assets, shares (equity interest) are being acquired into ownership or obtained for management or use, or of at least one of the founders of the undertaking being created, taking into account relations of control, in the preceding financial year, exceeded the amount being equivalent to €8 million, wherein sale turnover of goods of one other participant in the concentration, taking into account relations of control, in the preceding financial year, including outside of Ukraine, exceeded the equivalent of €150 million.
That a simplified procedure to consider concentration approval filings within 25 calendar days may be applied if:
Only one participant in concentration effectuates its activities on the territory of Ukraine; or
The aggregate market share of participants in the same goods market does not exceed 15 percent; or
The market shares or aggregate market shares of the participants in concentration do not exceed 20 percent of the goods market where products (goods, works, services) are sold without acquisition or sale of which the business activity of any other participant in concentration becomes impossible.
The possibility of preliminary consultations with the Anti-Monopoly Committee regarding information and documents necessary to consider the concentration approval filing or concerted actions filing.
The possibility of coordinating with the Anti-Monopoly Committee of obligations (which would remove relevant negative affect on competition) which the participants in concentration or concerted actions are prepared to take, if the Anti-Monopoly Committee has preliminarily concluded that such concentration or concerted actions may be prohibited.
The Law also stipulates that the Anti-Monopoly Committee must refuse to consider the concentration approval filing if no information on ultimate beneficiary owners of the participants in concentration has been submitted. We note that no exception is made for publicly listed companies where ultimate beneficiary owners are unknown.
In addition, the amount of fees for filing for concentration or concerted actions and the fees for preliminary conclusions on concentration or concerted actions or recommendation guidelines have been increased four times.
It is worth noting that the Regulation “On the procedure for submission of applications to the Antimonopoly Committee of Ukraine for obtaining of prior approval for concentrations of business entities (Regulation on Concentration)” still does not reflect the said changes in the Law "On Protection of Economic Competition". Therefore, until the Regulation on Concentration is adjusted accordingly it will be not quite clear, for example, how the simplified procedure will work in practice.