The Antimonopoly Committee of Ukraine shall resume consideration of applications for authorization of mergers and concerted actions

With the beginning of a large-scale armed aggression of the Russian Federation against Ukraine, the Antimonopoly Committee of Ukraine (hereinafter – the AMCU) suspended the consideration of certain issues that fall under its authority. Thus, during the period of martial law, the AMCU adopted two main documents in the field of control over mergers and concerted actions:

1) Order of the AMCU of 03.03.2022 № 1-rp “On some issues of the organization of activities of the Antimonopoly Committee of Ukraine during martial law” (hereinafter - Order No. 1-rp).

2) Recommendatory explanations of the AMCU of 30.03.2022 № 1-rr “On some issues related to the submission and consideration of applications for permission for concerted actions, mergers of undertakings during martial law, equal application of the provisions of Articles 26 and 27, paragraph three of the second part of Article 52 of the Law of Ukraine “On Protection of Economic Competition” to violations of legislation on protection of economic competition provided for in paragraphs 5, 12 of Article 50 of this Law, committed during martial law” (hereinafter – Recommendatory explanations No. 1-rr).

Taking into account the above-mentioned documents and separate orders of the AMCU`s bodies, adopted in accordance with the requirements of the Recommendatory explanations No. 1-rr, until today, consideration of all cases and applications for granting permission for concerted actions, mergers of undertakings, as well as applications for provision of interim conclusions regarding concerted actions, mergers of undertakings has been suspended. 

However, the circumstances that led to the adoption of the Order No. 1-rp and Recommendatory explanations No. 1-rr have changed. In particular, the staff of the AMCU regained direct access to the building of the AMCU, as well as to state registers, without the use of which it was impossible to exercise the powers vested in the Authority.

The AMCU underlines that significant part of business continues to operate during the war. Of course, this is a positive factor, because economic activity is a guarantee of filling the state budget, maintaining the solvency of the population and the functioning of the State under martial law in general.

Therefore, without waiting for the end of the martial law, the AMCU decided to make comprehensive changes aimed at supporting the Ukrainian economy and business, namely to resume activities in the field of mergers and concerted actions.

Hence, on June 9, 2022, the AMCU adopted:

- the Order “On resumption of consideration of applications on mergers, concerted actions and interim conclusions”, which amended the Order No. 1-rp (as amended). The Order comes into force on 09.06.2022. 

- Recommendatory explanations “On Resumption of Consideration of Applications on Mergers and Concerted Actions”, which amended the Recommendatory explanations No. 1-rr. The Recommendatory explanations come into force on June 9, 2022, and shall be applied from June 17, 2022. 

As a result of the adoption of these documents, the following changes in the field of control over mergers and concerted actions are introduced.

1. With regard to applications and cases that were suspended on the basis of the Order 1-rp.

Starting from June 9, 2022 the following activities of the AMCU have been resumed: the consideration of all applications on granting permission for concerted actions, mergers of the undertakings, interim conclusions on these issues, as well as cases on mergers and concerted actions submitted to the AMCU and decisions on which were not adopted as of February 25, 2022, and which were suspended pursuant to the order of the AMCU of March 3, 2022 № 1-rp.

Please be advised that such applications and cases do not provide for the adoption of separate procedural documents and a sending of separate notifications to applicants (their representatives) on their renewal. The consideration of such applications and cases resumed automatically as the respective order entered into force. The term of consideration of applications and cases has been renewed since June 9, 2022.

Further consideration of applications and cases suspended on the basis of the Order 1-rp is subject to Section VI of the Law of Ukraine “On Protection of Economic Competition”, the Regulation on Merger(s) and the Regulation on Concerted Actions.

2. With regard to the applications to be received by the AMCU from June 20, 2022. 

The AMCU removed the possibility to submit a shortened list of documents attached to applications on granting permission for mergers and concerted actions, and also simplified the procedure for their submission. Also, the AMCU will no longer suspend consideration of these applications, and the cases on violation of law on economic competition, opened on the basis of new applications, will no longer be subject to the provisions on fines, as provided for in the Recommendatory explanations № 1-rr.

Please be advised that such changes are introduced starting June 20, 2022. Applications received in the period from 09.06.2022 to 17.06.2022 (inclusively) will be considered in the manner prescribed in Recommendatory explanations 1-rr (as amended on 30.03.2022).

Starting from June 20, 2022, the consideration of applications and cases on granting permission for concerted actions, mergers of undertakings, will be carried out in accordance with the requirements of Section VI of the Law of Ukraine “On Protection of Economic Competition”, The Regulation on Merger and The Regulation on Concerted Actions. 

Withal the date of receipt of the application shall be the date of its registration at the AMCU.

3. With regard to the applications received in accordance with the Recommendatory explanations No. 1-rr, in the period from 30.03.2022 to 17.06.2022 (inclusively).

It is important for the AMCU to remain consistent and predictable, to ensure legal certainty for undertakings in the field of control over mergers and concerted actions. 

Therefore, the AMCU preserves all rights of the applicants provided by the Recommendatory explanations of the AMCU No. 1-rr (as amended on 30.03.2022).

In particular, applicants retain the right to submit documents and information that were not submitted before the application for authorization of concerted actions/mergers of undertakings, which was submitted during martial law (a Supplement), within three months after the cessation or cancellation of martial law, as provided for by the Recommendatory explanations No. 1-rr.

Until a Supplement is received, but no later than three months after the cessation or cancellation of martial law, such applications shall remain suspended.

The bodies of the AMCU when deciding on the imposition of fines for violations of paragraphs 5, 12 of Article 50 of the Law of Ukraine “On Protection of Economic Competition” should be guided by the approaches set out in the Recommendatory explanations No. 1-rr.

At the same time, based on the general concept of resumption of activities in the field of mergers and concerted action, at the request of the applicants the consideration of such applications may be resumed prematurely - during martial law. 

That is, applicants are given the right to choose the procedure by which they wish to have their application considered: to wait for the end or cancellation of martial law or to obtain permission sooner (which will be important if the merger has not yet been completed and the violation has not been committed). 

In this case, the participants of the concerted actions/mergers of undertakings or their representatives may submit to the AMCU a request to resume consideration of the application before the end of martial law, and to which a Supplement to the application on granting permission for concerted actions/mergers must be added, and in its absence – the applicants must indicate this fact.

In its turn, the body of the AMCU will resume consideration of the respective application within seven days from the date of receipt of the respective notification. Further consideration of these applications and cases shall be in accordance with Section VI of the Law of Ukraine “On Protection of Economic Competition”, The Regulation on Mergers and The Regulation on Concerted Actions.