The Antimonopoly Committee of Ukraine publishes clarifications on merger control regime during and after the martial law in Ukraine

On 30 March 2022, the Antimonopoly Committee of Ukraine (the AMC) issued its guidance clarifying merger review procedure in Ukraine during the martial law (the Guidance). The main takeaways from the Guidance are the following:

• the requirement to obtain prior approval of the AMC for reportable transactions in Ukraine remains in force during the martial law;
• the AMC acknowledges that applicants may face difficulties in collecting all necessary data and documents required by the law;
• review of applications is de facto suspended since the AMC has no access to state registers;
• applicants have to submit all missing information and documents required as part of merger filing within three months after termination of the martial law; upon receipt of such additional information and documents the AMC resumes review of the suspended application;
• the AMC acknowledges the fact that transactions notified during wartime can be completed before their approval by the AMC; in such cases, the AMC intends to impose fines not exceeding UAH 51,000 (approx. EUR 1,600) for transactions that:

1. do not result in monopolization or significant limitation of competition, and
2. are not prohibited under the Law of Ukraine “On Sanctions”, and
3. applications on which have been submitted in accordance with the Guidance.

The Guidance does not apply to deals where one of the parties is ultimately controlled by the Russian Federation or Russian citizens supporting aggression against Ukraine, or if the AMC has reasonable grounds to suspect a divestment of assets or shares aimed at circumvention of sanctions imposed for aggression against Ukraine. In these scenarios, the AMC will impose statutory maximum fines.

The Guidance confirms that parties willing to comply with Ukrainian merger control requirements have to notify their transactions in Ukraine without waiting for the martial law to be withdrawn. As Ukrainian law does not regulate the peculiarities of merger control regime during martial law, the AMC offers some practical solutions that will need to be tested in practice and rely heavily on the discretion of the AMC’s officers.

Our team will be more than happy to advise clients on the most efficient way to submit notifications during wartime, as well as to provide practical solutions to protect applicants from fines that may be imposed in the future for closing transactions during martial law.