Latest months of the Antimonopoly Committee (the “AMC”) activity has brought more practical changes than recent years of shady stability and it looks like there is more to come. The new management team of the AMC is currently initiating a number of long-desired reforms of applicable Ukrainian competition legislation. Some of the initiatives are already in place and the market players are now treated according to the new rules.
On 15 September 2015 the AMC officially approved and enacted its Recommendations on fines calculation for infringements of the competition legislation providing for:
- principles of fines calculation; and
- amnesty” for historical failures to file for Ukrainian merger clearance.
Up until now the AMC had no official document providing for methodology of fines calculation applied for infringements of competition legislation.
Furthermore, the AMC is currently promoting the Dra Law which provides for certain amendments into merger control regulations including the increase of financial thresholds applicable for transactions requiring prior clearance. Respective Draft Law has already received a positive expert conclusion of the AMC within the Parliament procedure and is currently being under review of the Parliament committees with high chances to be adopted by the end of this year.
In this respect and in view of contemplated increase of financial thresholds one may assume that the number of transactions requiring merger clearance in Ukraine will decrease, and thus the AMC will be more focused on failures to notify the transaction requiring prior clearance.
In view of the above and in preparation for further toughening of merger control regime, the AMC has launched an “amnesty” program whereby global corporates and Ukrainian business groups are now welcome to disclose their group structures to the AMC and voluntarily inform on any historical failures to notify certain transactions to the Ukrainian competition authority. Financial risk of any identified historical breaches of the Ukrainian merger control rules is limited to the following rather nominal penalty figures:
- Equiv. of EUR 850 per one breach (if voluntarily disclosed to the AMC within
next 180 days) and
- Equiv. of EUR 4 270 per one breach (if voluntarily disclosed to the AMC
within next 181-365 days).
We believe that respective amnesty program may present a good opportunity to disclose any previous transactions which for any reasons were not filed in Ukraine. Respective steps will contribute to bringing the corporate structure of the groups in full compliance with the Ukrainian merger control rules.
In order to benefit from the respective amnesty program the parties need to apply to the AMC with the application for merger clearance. The scope of the information required for such application will be nearly similar to the scope which is generally required for merger clearance notifications in Ukraine.
Importantly, the AMC is willing and ready not to publicize respective information regarding any such historical breaches by the applicants which apply for the amnesty program and request that their applications are treated with full confidentiality.
Currently the market players have very good chances to bring their corporate structures in compliance with the applicable merger control legislation. Respective procedure (if applied by the market players) will eliminate any future risks of imposition of fines for historical failures.
Respective initiatives clearly evidence on the AMC intention to reboot its relations with business based on the brand new principles including transparency, predictability and equality of the market operators. Moreover, it appears that current chances for successful practical implementation of competition reforms based on the above principles are better than ever before.