On 13 July 2011, the Antimonopoly Committee of Ukraine (the “AMC”) adopted amendments to the Regulation on Concentration (the “Amendments”).
According to the Amendments, more information is to be disclosed with respect to the foreign participants of concentrations which are registered in offshore territories.
The jurisdictions that are deemed to be “offshore territories” are specially defined by the Cabinet of Ministers of Ukraine in its Order dated 23 February 2011 No. 143-p. Such jurisdictions include, amongst others, Jersey and Island of Man islands, Monaco, British Virgin Islands and Andorra.
In addition to the extensive list of information and documents that are currently subject to disclosure before the AMC in merger control cases, pursuant to the Amendments, the following information is to be provided by the parties in respect of the participants of concentrations incorporated in offshore territories:
- Copies of the agency/commission agreements, power of attorney or documents issued by the chairman of the governing body of the business entity that entitle other entities/individuals to perform functions of the respective governing body in full or in part;
- Copies of the agency/commission agreements, power of attorney or documents issued by the shareholders/participants of the business entity according to which other entities/individuals have a right to participate in management, profits or enter into the agreements regarding the sale and purchase of the shares/participatory interests; and
- Data on individuals and legal entities which receive benefits from the property of the business entity or its shares/participatory interests (such benefits include for example, profit from the property, the possibility to use the property and non-proprietary rights arising out of the proprietary rights) irrespective of who is in fact the owner of such property.
The Amendments also provide for a right of the AMC state commissioners to request the same information with respect to the other foreign participants of the concentration which do not reside in the offshore territories.
It should be borne in mind that according to Ukrainian competition law, participants of the concentration are defined as all entities (and, in certain cases individuals) comprising the acquirer’s and the target’s group (including the controlling sellers).
The Amendments also require that, instead of the company’s identification code (код ЄДРПОУ) the parties should mention in the merger control filings the participants’ tax code.
The Amendments will come into force from the day of their official promulgation which is expected shortly.
- Regulation of the Antimonopoly Committee of Ukraine on Adoption of Amendments to the Regulation on Concentration, dated 13 July 2011 No. 367-p;
- Regulation of the Antimonopoly Committee of Ukraine on the Order of Submission of Application to the Antimonopoly Committee of Ukraine Seeking the Prior Approval for Concentration of Business Entities (Regulation on Concentration), dated 19 February 2002 No. 33-p; and
- Order of the Cabinet of Ministers of Ukraine on the List of Offshore Zones, dated 23 February 2011, No. 143-p.