On 30 March 2022, the Antimonopoly Committee of Ukraine (the “AMC“) adopted the guidelines on the merger control procedure during the time of the martial law in Ukraine (the “Guidelines“).
Pursuant to the Guidelines, the obligation to obtain prior clearance for notifiable transactions remains in force during the time of the martial law. The AMC will accept the filings but will review them only after the end of the martial law. If the transaction is closed before the approval of the AMC is received, the AMC will impose capped nominal fines for non-problematic transactions if they were timely filed pursuant to the Guidelines.
Key points of the Guidelines:
- the parties may initially submit a shortened set of information/documents together with a filing;
- the parties will have up to 3 months after termination of the martial law to submit the outstanding information/documents (within the standard scope required by the Ukrainian Merger Control Regulation);
- the filing should be submitted not less than 15 calendar days prior to closing of a notifiable transaction;
- the filings should be submitted to the AMC’s office in Lviv;
- the parties are allowed to submit a filing via email if they are unable to submit it to the AMC’s office in Lviv;
- the filings are/will not be reviewed by the AMC during the time of the martial law;
- the AMC will start reviewing the submitted filings after termination of the martial law, and after receiving the full set of information/documents.
The amounts of a gun-jumping fine for filings will be as follows:
- up to UAH 51k (approx. EUR 1.6k) if (i) a transaction does not lead to monopolisation of or a significant restriction of competition in the Ukrainian market(s), (ii) such transaction is not prohibited under the Law of Ukraine “On Sanctions”, and (iii) a filing is timely submitted in accordance with the Guidelines;
- up to UAH 340k (approx. EUR 11.5k) if (i) a transaction does not lead to monopolisation of or a significant restriction of competition in the Ukrainian market(s), and (ii) the parties failed to timely submit a filing in accordance with the Guidelines; and
- 5% of the acquirer’s annual turnover (possibly at a group level) in cases where:
- the russian federation or its citizen(s) supporting military aggression against Ukraine are UBO(s) of at least one of the parties to the transaction; and/or
- the AMC has substantiated suspicions that the transaction is aimed to evade international sanctions related to the russian military aggression against Ukraine.
Minimum set of information/documents
The filings should initially contain the following information/documents in order to be submitted:
- the description of a notifiable event(s);
- the description of the parties’ activities in Ukraine;
- the description of control relations between the parties’ entities which are registered and/or active in Ukraine – up to the level of the ultimate beneficiary owners;
- the control charts of the parties prior to and after implementation of a transaction;
- the information on russian shareholders (if any) of the parties;
- the PoAs for the authorised representatives of the parties;
- the filing fee payment order.
The parties will have up to 3 months after termination of the martial law to submit the rest of the information/documents from the standard set required by the Ukrainian Merger Control Regulation. Meanwhile, the parties are allowed to submit the full set of information/documents together with a filing, if possible.
By Anastasia Usova, Partner, and Denys Medvediev, Senior Associate, Redcliffe Partners