Top-10 questions on merger control in Ukraine

Which transactions require merger clearance?

If the transaction constitutes “concentration” under Ukrainian law, merger clearance may be required.

The definition of “concentration” includes different types of transactions: 

(1) merger or acquisition; 

(2) acquisition of control (direct or indirect);

(3) joint ventures.

However, not every concentration requires merger clearance. Only concentrations exceeding financial thresholds are notifiable.

What are the mandatory filing thresholds?

Concentration requires merger clearance if one of two alternative tests is triggered.

Test 1:

• the combined global assets or turnover of all parties exceed EUR 30 million; and
• the assets or turnover in Ukraine of each of at least two parties exceed EUR 4 million.

Test 2:

• the assets or turnover in Ukraine of at least one party exceed EUR 8 million; and
• the global turnover of at least one other party exceeds EUR 150 million.

All thresholds are calculated on a group-wide basis for the preceding financial year.

Which transactions are exempt from merger clearance?

The following transactions are excluded from the definition of “concentration” and are not notifiable:

• within-group transactions, where control within the group is established in accordance with Ukrainian merger control rules;
• creation of a joint venture that will not operate as an autonomous economic entity on a lasting basis (such a transaction is considered a “concerted practice”);
• acquisition of shares by a financial or securities institution for resale within one year, provided it does not exercise voting rights in the governing bodies;
• acquisition of control over an entity or its part by a bankruptcy trustee or state authority official;
• acquisition of assets or shares by a financial institution under a restructuring plan, with resale within two years; and
• acquisition of assets or shares by a bank through foreclosure on collateral, with resale within one year, provided it does not exercise voting rights in the governing bodies or use the assets.

Also, under martial law, an acquisition of control by a state-owned company (with 50% or more state participation – meaning that a private investor may hold up to 50%) or its controlled entities over energy or utility companies is not regarded as a “concentration”, provided that the acquisition aims to prevent or eliminate emergencies or disruptions in the supply of energy, heat, water, or gas.

How are foreign-to-foreign transactions treated under Ukrainian merger control rules?

Foreign-to-foreign transactions may trigger Ukrainian merger control filing requirements if the parties exceed the relevant financial thresholds.

Accordingly, even in the absence of sales, assets, or a local presence in Ukraine, notification may still be required.

However, under martial law and for 90 days thereafter, foreign-to-foreign transactions aimed at the development and implementation of technologies, as well as the manufacture of military and dual-use products in Ukraine that meet certain criteria, are exempt from the obligation to obtain merger clearance and may be carried out.

Which authority is responsible for issuing merger clearance in Ukraine?

The Antimonopoly Committee of Ukraine (AMC) is the primary state body responsible for protecting competition, reviewing transactions, and issuing merger clearance.

If the AMC prohibits a concentration, the Cabinet of Ministers of Ukraine may override its decision if the positive effects for the public interest outweigh the negative impact on competition.

When should parties submit notification?

The parties can submit a notification at any time, but they should obtain merger clearance before closing the transaction.

However, if the parties conduct concentration via competitive procedures (bidding, auctions, contests, tenders, etc.), they may submit the notification either before the procedure starts or within thirty days after the winner is announced.

What are the key procedural deadlines in Ukraine’s merger control review process?

Standard review

• Preview period – up to 15 calendar days. The AMC checks whether the notification and accompanying documents comply with formal requirements.
• Substantive review (Phase I) – up to 30 calendar days. The AMC assesses whether the concentration can be approved or whether there are grounds for prohibition:

• if there are no grounds for prohibition and there are no restrictions under sanctions law, the AMC issues merger clearance within Phase I;
• clearance is also deemed granted if, by the end of Phase I, the AMC has not initiated Phase II.
• In-depth review (Phase II) – up to 3 months. Initiated if there are grounds for prohibition. The AMC conducts a comprehensive analysis of the transaction and its impact on competition, collects opinions of competitors, consumers, experts, and other relevant parties, and conducts surveys.

Total duration: up to 45 calendar days (preview and Phase I); up to 4,5 months with Phase II.

Fast-Track review

• Combined preview and substantive review – up to 25 calendar days from filing.
• Available if:

• only one party carries out activities in Ukraine; or
• combined share of the parties does not exceed 15 per cent on the relevant market, and 20 per cent on vertically related markets.

In practice, however, the AMC may still apply the standard procedure even if fast-track conditions are formally met. For example, where a party has not previously undergone review, the AMC may consider notification under standard review and require disclosure of the group’s formation history, including dates of acquisition and incorporation, as well as details of earlier transactions.

Under what conditions does the AMC approve a transaction?

The AMC approves a transaction (concentration) when it determines that the transaction does not result in monopolisation or a substantial restriction of competition in the relevant market.

If the AMC identifies potential adverse effects on competition, it may still approve the transaction provided that the parties propose remedies that eliminate those effects.

The AMC does not grant merger clearance if Ukrainian sanction legislation prohibits the transaction.

What financial penalties apply for failure to notify of a transaction?

Failure to notify of a transaction (concentration) may result in a fine of up to 5% of the group’s annual turnover for the last reporting year.

The actual amount of the fine may vary significantly depending on whether the violation leads to monopolisation or a substantial restriction of competition.

In addition, the AMC may consider aggravating or mitigating factors when determining the final amount of the fine.

For example, monopolisation or restriction of competition across more than two regions of Ukraine, or repeated violations, may be treated as aggravating factors.

Conversely, filing for clearance before the formal investigation begins, active cooperation with the AMC, and mitigation of adverse effects are considered mitigating factors that may reduce the fine.

What should parties take into account before filing?

Before submitting a merger filing to the AMC, the parties should carefully consider the following:

• screen for Ukrainian sanctions – conduct a thorough check to confirm that none of the parties to the transaction (concentration), including their ultimate beneficial owners, are subject to Ukrainian sanctions;
• assess activities in russia and belarus – verify whether any of the groups involved conduct business in russia and belarus. If so, collect information on their exit plans and timelines;
• identify control relationships – prepare detailed information on all control links between entities, each entity’s corporate details and actual business activities;
• define relevant markets and market shares – clearly define the relevant market and calculate the parties’ market shares. This is essential, particularly to assess eligibility for a fast-track review;
• prepare required documents – ensure all documents are duly apostilled (legalised) and notarised, where applicable. These include powers of attorney for representatives, documents confirming ultimate beneficial owners (if any), evidence of funding availability, extracts from business registers, and any other documents required.