Regular merger control regime resumed in Ukraine

On 9 June 2022, the Antimonopoly Committee of Ukraine (the AMC) has decided to renew its regular review of concentrations and concerted practices filings under the pre-war regime. As described in our previous press release, the AMC suspended most of its operations on 3 March 2022, eight days after the Russian Federation started a war in Ukraine. The merger review procedure was simplified pursuant to the Guidance clarifying merger review procedure in Ukraine during martial law No. 1-рр of 31 March 2022 (the Previous Guidance), described in our press release on the Previous Guidance.

Earlier today, the AMC adopted amendments (the Amended Guidance) to the Previous Guidance. Although the Amended Guidance is still to be published, the AMC has already published a press release on how notifications submitted during different time periods will be treated:

Before the war, where the AMC has not adopted its clearance decisions by 25 February 2022

• review of these notifications will be automatically renewed on 9 June 2022;
• the parties will not be informed by the AMC separately on review renewal of such notifications;
• the AMC will likely revert with clarification questions on the notifications within the following weeks.

From 30 March 2022 to 9 June 2022, based on the Previous Guidance

• all notifications submitted during this period will be reviewed by the AMC in accordance with approaches set out in the Previous Guidance;
• symbolic amount of fine as provided by the Previous Guidance is expected to be imposed for any concentrations completed before clearance is granted;
• the parties may still submit all outstanding information and documents as required by the law within three months after martial law is revoked;
• the parties are also entitled to request the AMC to renew the notifications’ review before martial law is revoked; the AMC will have seven days to renew the notification review upon receipt of such request.

From 9 June 2022 to 17 June 2022

•  the parties are still entitled to submit the short filings during this period as provided by the Previous Guidance;
• a symbolic amount of fine will still be applied for notifications submitted during this period.

After 20 June 2022

• the parties can no longer submit short filings and cannot rely on symbolic fines;
• all filings have to be submitted in accordance with effective Ukrainian competition law and merger control regulations effective during the pre-war time period.

The suspension of AMC’s operations in March 2022 and today’s announcement raise a lot of practical questions. Some of them are expected to be answered in the Amended Guidance, the text of which is still to be published. It is anticipated that each notification submitted during this challenging period will require an individual approach to its review and will be analyzed by the AMC on a case-by-case basis.

It is also important to mention that the AMC’s press release on the Amended Guidance does not mention the possibility of tacit approval of notifications submitted by many parties before or during martial law in Ukraine. While Ukrainian competition laws clearly establish such principle, and many applicants relied on these provisions of the law, it is not clear how the AMC will treat such notifications.

Our team will be happy to offer pragmatic advice and practical solutions for any scenarios the parties may come across while interacting with the AMC.