On 12 November 2012 a draft law changing the merger control procedure in Ukraine (the “Draft Law”) was passed after its first reading in the Ukrainian Parliament.

The Draft Law is part of ongoing competition law reforms which Ukraine is undertaking in line with the Ukraine-EU Association Agreement.

The Draft Law introduces several important changes to the existing merger control procedure:

A.  Filing thresholds significantly increased

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B.  Preliminary consultations and expedited review procedures introduced

Applicants are entitled to consult the Anti-Monopoly Committee (the “AMC”) with respect to the following: documents and information necessary for the notification of the intended merger, expedited notification review options, and removal of defects in notification materials already submitted.

The expedited review procedure of 25 days (regular review procedure is 45 days) starting from the submission applies in the following cases:

  1. only one party to a transaction is active in Ukraine; or
  2. the aggregate market share of all parties to a transaction in one and the same market does not exceed 15%; or
  3. the market shares or aggregate market shares of parties to a transaction active in a market that is downstream or upstream to the market in which any other party to a transaction is active, do not exceed 20%.

C.  Procedure for proposing remedies and imposing conditional decisions during Phase II review clarified

If, during Phase II, the AMC sees grounds for prohibiting the transaction, it must notify the applicants and give them reasonable time to propose remedy obligations mitigating or removing the negative impact of the transaction on competition.

Such remedy obligations must be proportional to and justified by the anti-competitive threats of the transaction. The AMC’s measures to control the remedy obligations undertaken by the parties to a transaction cannot be excessive.

D.  Filing fee increased

Administrative fees for submitting the merger control and concerted action notifications and other submissions to the AMC increased significantly (four times the current fees). Nonetheless, even the increased filing fee will remain relatively low (see some examples below).

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The Draft Law is now being prepared for its second reading in Parliament.