Answer ... If the AMCU prohibits the transaction, the Cabinet of Ministers of Ukraine (CMU) may still grant clearance if the positive effects in the public interest outweigh the negative impact on competition, unless the restriction of competition is not necessary to achieve the purpose of the concentration or jeopardises the market economy. However, there are no publicly available cases of the CMU granting clearance for a transaction that was prohibited by the AMCU.

The AMCU’s decisions can also be challenged in the commercial courts. The relevant statement of claim indicating the grounds for invalidation of the AMCU’s decision must be filed with the commercial court within two months of receipt of the decision.

Decisions of the commercial courts may be further appealed to the competent appellate instance within 20 days. If the appeal is unsuccessful, the claimant may appeal to the Supreme Court of Ukraine (the cassation commercial court).

As the AMCU has issued few prohibition decisions, and in each case has thoroughly and deliberately assessed the facts and the potential impact of the transaction on the relevant markets, there have been no instances of successful appeals in merger cases (although not all court decisions are publicly available). Further, there is no public record of successful appeals against clearance decisions of the AMCU.

Answer ... Third parties may appeal an AMCU decision on merger clearance if the decision violates their rights.