On March 30, the Antimonopoly Committee of Ukraine (the AMCU) adopted Recommendations on some issues related to submission and consideration of applications for permission for concerted actions, mergers of economic entities during martial law (Recommendations).
During martial law:
Participants to mergers/concerted actions are NOT exempt from obligation to submit to the AMCU applications for permission for concerted actions or for mergers of economic entities in cases provided by Antitrust legislation.
The capacity of economic entities to collect, prepare and submit relevant applications may be limited (in particular due to the consequences of military actions). The AMCU allows entities to submit an abbreviated list of documents, however, applications must contain the minimum list of data specified in the Recommendations:
name of the state body; reference to the relevant legal act, which provides for submission to the AMCU; names and details of the participants of the merger/concerted actions, their activities; names and contacts of responsible persons or representatives;
essence of the merger/concerted actions; list of documents and information attached to the application;
information on ultimate beneficial owners of the parties to the merger/concerted actions and the presence in their structure individuals and legal entities – residents of Russia;
documents confirming payment of the fee for the submission of application, the scheme of control relations of the parties to the merger/concerted actions; copies of powers of attorney of authorized representatives; copies of documents for identification of an individual – an applicant.
The application and the documents attached thereto must be submitted to the AMCU at least 15 calendar days before the merger or concerted actions.
The AMCU introduces a simplified application procedure and the possibility to submit an application by e-mail.
At the same time, during martial law the AMCU is working remotely and doesn’t have the access to state registers, that’s why a new term was set – three months after the cessation or abolition of martial law, during which:
applicants or their authorized representatives must submit to the body of the AMCU documents and information according to jurisdiction specified by law, which were not submitted with the application during martial law; and
the AMCU resumes consideration of the application received.
Besides, in such circumstances the AMCU may consider the applications on merits AFTER the concerted actions or mergers have been conducted by the economic entities.
The responsibility for such violations during martial law is regulated as follows:
The amount of fines will vary depending on the applicants’ compliance/non-compliance with the requirements set out in the Recommendations.
In case of merger conducted during martial law without the relevant permission of the AMCU, if such a permission is necessary and such a merger does not lead to monopolization or significant restriction of competition in the whole market (or in the most of its part) and is not prohibited in accordance with the Law of Ukraine "On Sanctions"/concerted actions are not prohibited, the fine will be determined in the amount that doesn’t exceed 3000 non-taxable minimum incomes (only if the requirements and deadlines for filing and submitting the application specified in the Recommendations are met) – UAH 51,000.
If an undertaking violated the requirements and deadlines for filing and submitting the application specified in the Recommendations, the fine will be determined in the amount that doesn’t exceed 20,000 non-taxable minimum incomes – UAH 340,000.
The fine will be determined in the maximum amount, if the ultimate beneficial owner(s) of one of the parties to the merger/concerted actions is the russian federation or citizens of the russian federation who have supported military aggression against Ukraine, or if the AMCU has reasonable suspicions that the purpose of the merger is to remove assets/shares/units/stocks from the scope of international sanctions imposed for military aggression against Ukraine.
By Yaroslav Medvediev, Counsel, Integrites