Answer ... Normally, it takes one to two months for the Anti-monopoly Committee of Ukraine (AMCU) to conduct its review once the application has been submitted.
Unless the AMCU state commissioner rejects the application due to failure to meet the requirements specified by the AMCU, the application shall be accepted for consideration by the AMCU within 15 days of receipt.
The AMCU or its administrative board shall consider the application within 30 days of its acceptance for consideration.
Answer ... A decision on accelerated consideration of the merger is taken by the AMCU state commissioner who is supervising the application.
The accelerated 25-day review procedure is applicable only to a fraction of merger transactions. In particular, it can be applied if:
- only one party to the transaction under consideration is active in Ukraine; or
- if the parties’ aggregate market shares do not exceed 15% or the parties’ aggregate shares on the vertical markets do not exceed 20%.
In other cases, there are no formal ways to accelerate the timetable, except by ensuring that all necessary documentation is submitted together with the application. An informal way to accelerate the process is to submit the appropriate grounds and additional explanations regarding the need for clearance as fast as possible for the AMCU’s consideration.
Sometimes the ordinary clearance timetable can be expedited; this mostly depends on factors such as:
- the AMCU’s workload;
- the accuracy and completeness of the merger application;
- the complexity of the notified transaction;
- the absence of any competition concerns; and
- any national interest in accelerating the process.
If any grounds for prohibiting the concentration come to light, the AMCU may initiate a more detailed review of the application, called a ‘concentration case’. If this occurs, the applicant will be notified accordingly.
The timeframe for considering the concentration case shall not exceed three months, as from the date on which the applicant submits all information in full and obtains any expert opinion that is required. The law does not impose a time limit for the collection of additional documents or information. Therefore, there may be delays between the opening of a case by the AMCU, any resulting request for additional documents, information or expert opinions, and the actual commencement of the case consideration procedure.
Answer ... No. Simplified review is possible only in the form of preliminary conclusions.
Answer ... This will depend on the information submitted to the AMCU.
Answer ... AMCU agencies and employees and local departments are empowered to gather evidence and materials regarding the case.
AMCU agencies and employees have diverse powers at their disposal, including the power to gather evidence, request information, seize evidence, apprehend subjects and commence examinations.
Answer ... Third parties can participate in the review process by submitting information required by the AMCU.
Answer ... This possibility is not provided for by law.
Answer ... In assessing the potential impact of a transaction on competition, the AMCU will compare the market structure before and after execution of the transaction, and evaluate the conditions which would prevail in the absence of the transaction. Although market share is the most obvious indicator of market structure and the extent of the participants’ and their competitors’ impact on the market, this is only one of several criteria used to evaluate the impact of the transaction on competition in the market.
There are several noteworthy examples of potential negative impacts on the market which may lead the AMCU to prohibit the transaction, including:
- the possible elimination of potential competition or of an important market factor for ensuring competition;
- the ability to control trade channels or to change conditions of access to resources and infrastructure;
- changes in advertising, product promotion or market access, or changes in access to patents or other forms of IP rights (eg, trademarks and brands);
- the gaining of significant financial power by the participants in comparison with their competitors; and
- the impossibility of third parties gaining market access due to vertical concentration.
Answer ... The AMCU applies a similar test to joint ventures.
Answer ... In recent years, the AMCU has tended to lean towards the ‘substantial restraint of competition’ test, as opposed to the ‘dominance’ test.
However, additional difficulties can arise if the transaction might create, maintain or reinforce a dominant market position or otherwise have a negative impact upon competition; or if there are sufficient grounds for state intrusion into the particulars of the transaction - for example, if, as a result of the transaction, the participants will be able to:
- extend and diversify their product offerings;
- offer clients a combination of their own and supplementary goods; or
- balance their market power in one market with their parallel influence in another.
The potential competitive harm must be sufficiently high for the AMCU’s assessment to be based on the ‘substantial restraint of competition’ criterion.
Thus, the AMCU will holistically evaluate the impact of the transaction on competition in the market, considering factors that will or may impact not only on the market in which the transaction is taking place, but also on adjacent markets and the economy as a whole.