Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Article 22 of the law on the protection of competition defines a concentration requiring clearance by the AMCU as any of the following operations: 
- merger of business entities or takeover of one by another; 
- acquisition or direct or indirect control over an undertaking (including through the acquisition of a significant part of the assets of an undertaking, appointment of its managers, etc.);
 …

Concept of concentration

The essential sources of the merger control regime are the Law of Ukraine on Protection of Economic Competition of 2001, as amended in January 2016 (the relevant provisions came into force on 18 May 2016), the Act on the Antimonopoly Committee of Ukraine of 1993, and the AMCU's Merger Regulation of 2002, as amended in June 2016 (the relevant provisions came in force on 19 August 2016). The AMCU also released various sets of guidelines relating to merger control, e.g. the Guidelines on horizontal mergers of 2016, the Guidelines on non-horizontal mergers of 2018, the Guidelines on the definition of control of 2018, the Guidelines on the assessement of Joint-Ventures of 2019 or the Guidelines on the Application of the SSNIP Test of 2020. 

On 1 January 2024, Law No. 3295-IX of 9 August 2023 entered into force and reformed Ukrainian competition law. The law introduces a number of amendments including changes to obtaining the AMC's approval for concentrations and concerted actions.

Context

Article 22 of the law on the protection of competition defines a concentration requiring clearance by the AMCU as any of the following operations: 

- merger of business entities or takeover of one by another; 

- acquisition or direct or indirect control over an undertaking (including through the acquisition of a significant part of the assets of an undertaking, appointment of its managers, etc.);

- creation of a business entity by two or more undertaking, which will independently carry out an economic activity;

- direct or indirect acquisition of control over shares that result in attaining or exceeding certain thresholds (25% or 50% of the votes in the highest board of management of the undertaking concerned).

The AMCU adopted guidelines on the definition of control in November 2018 which closely reflect the EU standards. The Guidelines provide that “control” is constituted by rights, contracts or any other means that confer the possibility of exercising decisive influence on the target. They also establish a clear difference between de jure and de facto types of sole control, specify the cases of changes in control, and detail the rules applicable to control exercised through investment funds or the issue of transfer of intellectual property rights.

Regarding the situation of the creation of a joint-venture, the AMCU's Guidelines of September 2019 specify that a notifiable joint venture must be a newly created entity, fully functional, intended to operate on a lasting basis and must not be created to coordinate the behavior of the parent companies.

Amendments to the Competition Act which came into force on 18 May 2016 and on 1st January 2024 significantly raised the notification thresholds. From then on, a concentration must only be notified when one of the following conditions is met:

  - the aggregate worldwide value of assets or sales of the participants of the concentration in the last financial year exceeds EUR 30 million and the value of the assets or sales in Ukraine of at least two of the participants exceeds EUR 4 million; or

  - the value of assets or sales in Ukraine of at least one party to the concentration exceeds EUR 8 million and the worldwide value of assets or sales of at least one other party exceeds EUR 150 million.

Thresholds

Pursuant to Article 25 of the Law on protection of competition, the AMCU approves the concentration if it does not result in monopolization or a significant restriction of competition on the whole market or a significant part of it. 

Further guidance on the assessment of horizontal mergers is provided in the AMCU's Horizontal Merger Guidelines of 2016.

Global Competition Law

1374. Concept of concentration

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Les notions juridiques connexes

1374. Concept of concentration

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise