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To prevent market monopolization and restriction of competition, the Antimonopoly Committee of Ukraine (AMCU) exercises control over economic concentrations and coordinated actions of business entities. This control aims to protect and promote competition, safeguard consumer interests, and counteract the abuse of monopoly power by large business entities in relevant markets.
However, despite the legal clarity of the mechanisms for monitoring economic concentrations and coordinated actions, bureaucratic burdens and complexities often impose significant challenges. These challenges are particularly pronounced in cases where obtaining AMCU approval, as mandated by law, involves complex scenarios. In practice, obtaining such approval may not always be straightforward due to the nuances of corporate strategies and the tactical steps taken to achieve them.
Moreover, there are cases where businesses undertake actions resembling concentrations without obtaining prior approval from the AMCU, leading to substantial fines.
For example, acquiring assets or corporate rights by a business entity that exceeds threshold indicators (if the combined value of assets or total sales revenue of the concentration participants, including control relationships, for the last financial year, both domestically and abroad, exceeds the equivalent of €30 million, and at least two participants have assets or sales revenue in Ukraine exceeding €4 million each) without prior AMCU approval may result in fines. Such fines can reach up to 5% of the revenue (turnover) of the entity from the sale of products (goods, works, services) for the last fiscal year preceding the year when the fine is imposed.
Therefore, to properly assess situations involving economic concentration or coordinated actions when planning corporate strategies and to prevent violations of antitrust laws in this area, timely professional assistance is essential. Securing prior approval for concentrations and/or coordinated actions from the AMCU can help businesses navigate bureaucratic pressures and avoid costly mistakes. Our team of specialists is ready to provide the necessary expertise to ensure compliance and mitigate risks.
- Provision of services for obtaining approval for concentration and coordinated actions of business entities, considering all requirements of current competition and antitrust legislation;
- Written and/or oral consultations to determine the compliance of a business entity's actions with the antitrust legislation of Ukraine;
- Recommendations on the necessity (or absence of necessity) of obtaining approval for concentration and coordinated actions of business entities;
- Evaluation of the presence of concentration participants and coordinated actions in the national and regional product markets;
- Analysis of existing agreements or development of draft agreements related to management, lease, leasing, concession, acquisition of assets, specific to your case of concentration or coordinated actions;
- Analysis of existing participants in concentration and coordinated actions connected through control relationships, to avoid submitting inaccurate information to the Committee;
- Preparation and documentation of the required package for obtaining preliminary conclusions regarding concentration and coordinated actions of business entities, as well as obtaining such conclusions;
- Preparation of the necessary documentation for obtaining approval for concentration and coordinated actions for submission to the AMCU;
- Legal support during the review of the application for obtaining approval for concentration and coordinated actions by the Antimonopoly Committee under the general or simplified procedure.
The information provided by applicants to the Antimonopoly Committee of Ukraine (AMCU) to obtain approval for concentration/coordinated actions must be accurate, reliable, and non-contradictory. If the participants in the concentration/coordinated actions provide conflicting information in different parts of the application, the Committee will conduct a verification of such information. This can negatively affect the duration and, in some cases, the outcome of the application review.
A power of attorney must specify that the risks of negative consequences associated with the Committee's review of decisions made based on inaccurate information submitted by the representative, as well as the responsibility for providing such information, lie with the participants in the concentration/coordinated actions who appointed the representative or their successors.
Along with the application, the applicant must submit the relevant documents. In such cases, it is advisable to provide certified copies of the documents in accordance with legislative requirements. Each page of the document copy must be properly certified.
When providing information to obtain approval, a participant in the concentration/coordinated actions may exercise their right to designate certain information as restricted access information. In such cases, reasonable behavior by the applicant is recommended to avoid abusing this right. The applicant should clearly indicate which information is classified as restricted access and provide a justification for such designation.
- An application for obtaining approval for concentration;
- A document confirming payment of the fee (payment order with the bank's mark or receipt);
- A package of documents specified by the legislation for each specific case of concentration.
An application for approval may be submitted by:
- for entering into agreements in any form by business entities – the parties to the agreements;
- for adopting decisions in any form by associations – the association making the decision;
- for creating a business entity – the founders (participants);
- for other concerted competitive behavior – the participants in the relevant actions who make decisions about such behavior;
- for amending concerted actions – the participants in the concerted actions who undertake or intend to undertake the modified concerted actions;
- the authorities and persons mentioned in points 1–5 may submit a joint application, appoint and authorize their representative to apply to the Committee or branch office with the application, as well as represent the interests of the participant(s) in the declared actions during the review of the application or case.
The application and accompanying documents must contain complete and accurate information.
Yes. According to Article 14 of the Law of Ukraine "On Protection of Economic Competition," to prevent violations of the legislation on the protection of economic competition and to enhance the predictability of its application, the Antimonopoly Committee of Ukraine or the administrative board of the Antimonopoly Committee of Ukraine may provide business entities, based on the information they submit, with conclusions in the form of advisory clarifications regarding the compliance of business entities’ actions with the provisions of Articles 6, 10, and 13 of the Law of Ukraine "On Protection of Economic Competition" and Article 15-1 of the Law of Ukraine "On Protection Against Unfair Competition."
Article 24 of the Law of Ukraine "On Protection of Economic Competition" outlines cases where the concentration of business entities is only permissible with prior approval from the Antimonopoly Committee of Ukraine or its administrative board. Failure to comply with this requirement may result in the imposition of fines and the invalidation of transactions that led to such concentration—at the request of the transaction participants and in accordance with Articles 114, 204, and 215 of the Civil Code of Ukraine and the relevant provisions of the mentioned Law. At the same time, under Article 182 of the Commercial Code of Ukraine, entering into a preliminary agreement before obtaining approval for concentration, if such approval is required, is not considered a violation of competition legislation. Furthermore, transferring funds under such an agreement does not indicate the acquisition of control by one business entity over another but confirms the intention to conclude the primary agreement in the future. However, the content of the agreement in such a case must clearly indicate that it is preliminary, specifically stating that the primary agreement will only be concluded upon obtaining approval for the concentration of business entities.
The review period for a concentration case must not exceed three months.
Clause 4.6, Chapter 4, "Regulation on Concentration," approved by the Resolution of the Antimonopoly Committee of Ukraine dated February 19, 2002, No. 33-r
The concentration must be implemented within one year from the date of the decision to grant approval for the concentration unless a longer period is specified in the decision. If the concentration is not implemented within this period, the participants must submit a new application to the Committee for approval of the concentration.
Clause 4.9.6, Chapter 4, "Regulation on Concentration," approved by the Resolution of the Antimonopoly Committee of Ukraine dated February 19, 2002, No. 33-r
The review period for applications seeking preliminary conclusions regarding concentration is one month.
Paragraph 2, Clause 4.1, Chapter 4, "Regulation on Concentration," approved by the Resolution of the Antimonopoly Committee of Ukraine dated February 19, 2002, No. 33-r