April 08, 2022
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Antimonopoly Committee of Ukraine clearances during martial law - JD Supra

On 30 March 2022, the Antimonopoly Committee of Ukraine (AMCU) published guidance on the consideration of applications for merger clearances and concerted actions as well as the fines for failure to obtain the relevant clearance.

According to the guidance, despite the fact that martial law constitutes a force majeure circumstance, business entities are still obliged to clear mergers or concerted actions with the AMCU.

During martial law, the AMCU allows companies to file applications according to a simplified procedure. The list of minimum data and documents to be submitted under the simplified procedure is as follows:

  1. Description of the proposed concentration or concerted actions;
  2. Information on the ultimate beneficiaries;
  3. Information on the absence of sanctioned entities or the presence of entities from the Russian Federation in the ownership structure;
  4. Power of attorney;
  5. Proof of payment of the filing fee;
  6. Description of the control relations and the principal activities of the participants.

The application and annexes thereto must be sent to the postal address of the AMCU (currently in Lviv). The application may also be sent to the e-mail address of the AMCU. In this case, the application must be certified by an electronic digital signature.

The application must be submitted to the AMCU at least 15 calendar days before the proposed concentration or concerted actions.

The consideration of all submitted applications is suspended until the termination or abolition of martial law. Such applications shall not even be regarded as accepted by the form (such applications shall be considered accepted within 15 calendar days from the date of their receipt in the absence of the AMCU’s comments).

Within three months of the termination or abolition of martial law, applicants must submit to the AMCU any documents and information that are required by law, which were not submitted together with the original application during martial law. After that, the AMC will resume consideration of the application.

Due to the fact that participants may carry out a concentration or concerted actions before obtaining the AMCU’s clearance, the guidance also provides for reduced fines that may be imposed:

  1. If an application is filed during martial law, and the concentration does not result in monopolization or significant restriction of competition in the whole market (or any significant part of the market) and is not prohibited under the Law of Ukraine “On Sanctions”, the amount of fine shall not exceed UAH 51,000 (the approximate equivalent of €1,570).
  2. If an application for clearance is filed during martial law and there are no grounds for prohibiting concerted actions, the amount of fine shall not exceed UAH 51,000 (the approximate equivalent of €1,570).
  3. If the deadline (15 calendar days before the proposed concentration or concerted actions) for filing an application has been violated or the application does not meet the requirements, the amount of fine shall not exceed UAH 340,000 (the approximate equivalent of €10,500).

The reduced fines shall not apply:

  • If the application or annexes thereto contain inaccurate information.
  • To concentrations or concerted actions where residents of the Russian Federation are participants or ultimate beneficiaries.
  • The concentration is aimed at the withdrawal of assets/shares/participation interests/stakes in order to evade the international sanctions imposed as a result of the armed invasion of Ukraine by the Russian Federation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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source: https://www.jdsupra.com/legalnews/antimonopoly-committee-of-ukraine-8164614/

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