The Ukrainian M&A market has undergone a decisive shift - away from aggressive expansion and toward liquidity management, debt restructuring, and risk mitigation. In this environment, investors increasingly favor long-term business value in a post-stabilization landscape over short-term performance metrics.

This recalibration has driven meaningful evolution in transaction structuring. Conventional models have given way to direct capital injections and more flexible payment arrangements, including earn-outs tied to future business performance - mechanisms designed to preserve deal viability under conditions of sustained economic uncertainty

Yet structural innovation alone cannot guarantee a transaction’s success. Regulatory compliance remains a decisive factor, and securing clearance from the Antimonopoly Committee of Ukraine (AMCU) for concentration transactions represents one of the most consequential stages of the process. It is here that Ilyashev & Partners delivers targeted legal guidance, helping clients navigate approval requirements with the rigor necessary to protect transaction validity.

Which Transactions Fall Under AMCU Regulatory Oversight?

Under Article 22 of the Law of Ukraine “On the Protection of Economic Competition” (the Law), a concentration encompasses any actions that alter the structure of control between economic entities or produce significant structural changes in the market. The Law identifies, among other things, the following actions as constituting a concentration:

  • mergers or amalgamations of economic entities that, prior to the transaction, were not linked by relations of control;
  • acquisition of direct or indirect control over an economic entity or any part thereof;
  • direct or indirect acquisition or any other form of gaining ownership of shares (or corporate rights) that results in reaching or exceeding 25% or 50% of votes in the highest governing body of the economic entity.

A critical distinction must be drawn between a concentration and concerted practices. What governs this classification is not merely the legal form of the transaction, but its actual purpose and the effect it produces on the competitive behavior of the participants. Notably, the establishment of a joint venture will not be treated as a concentration where its creation leads (or may lead) to the coordination of competitive behavior between the founders, or between the founders and the newly established entity. In such circumstances, the relevant actions are characterized as concerted practices within the meaning of Article 5 of the Law.

Both concentrations and concerted practices are subject to prior clearance by the Antimonopoly Committee of Ukraine where the parties to the transaction exceed the notification thresholds prescribed by the Law.

The Approach to Defining Control in Antitrust Regulation

In complex corporate and investment transactions, the doctrine of “piercing the corporate veil” assumes particular relevance enabling regulators to look beyond the formal legal structure of companies and examine the actual control relationships operating within a group. In the AMCU’s practice, it is precisely this assessment of de facto control that proves decisive when evaluating concentrations and the interconnectedness of economic entities.

For antitrust purposes, the analysis extends beyond the direct parties to a transaction to encompass all related legal entities and individuals through whom decisive influence over market participants' conduct may be exercised. Formal transaction structuring, therefore, does not in itself preclude classification as a concentration - it is the economic substance of the control relationships that ultimately determines the outcome.

This principle carries direct practical consequences in M&A transactions: when calculating the thresholds for mandatory merger clearance, the financial metrics of the entire group of companies under common control are aggregated - not merely those of the immediate transacting parties.

Financial Thresholds: When is an Application to the AMCU Mandatory?

Pursuant to Article 24 of the Law of Ukraine “On the Protection of Economic Competition,” a concentration is subject to prior clearance by the Antimonopoly Committee of Ukraine if the established value thresholds are met or exceeded.

Clearance is mandatory when either of the following sets of conditions is satisfied simultaneously:

  • the aggregate worldwide assets value or turnover of the transaction parties exceeds EUR 30 million, and the asset value or turnover in Ukraine of at least two parties each exceeds EUR 4 million;
  • the asset value or turnover in Ukraine of the target object, or the entity over which control is being acquired, exceeds the equivalent of EUR 8 million, and the aggregate worldwide turnover of at least one other party to the concentration exceeds the equivalent of EUR 150 million.

When concerted practices of economic entities fall outside the permissible market share parameters, they are subject to prior clearance by the Antimonopoly Committee of Ukraine.

Clearance is required where the participants’ aggregate market share in the relevant market exceeds 15% for horizontal or mixed concerted practices, and 20% for conglomerate concerted practices. This regime does not, however, extend to price-fixing, market allocation, production limitation, or bid-rigging - conduct that falls within AMCU's jurisdiction irrespective of the participants’ market share.

Important for the investor: this necessitates a comprehensive review of the consolidated financial statements of the entire corporate group, taking into account data from all parent and subsidiary structures.

Practical Experience: Case of SE “Ukrniispetsstal”

Accurate preliminary qualification of a transaction can spares an investor considerable time and procedural burden -particularly where the notification thresholds are not, upon closer analysis, actually met.

A case handled by the Ilyashev & Partners Antitrust and Competition Practice team illustrates this well. The team advised the Ukrainian enterprise Technological Synthesis Ltd. in connection with the privatization of the unified property complex of SE Ukrniispetsstal (Zaporizhzhia). Given the scale of the target, there was a tangible risk that the transaction would require a full merger clearance procedure, potentially delaying the transaction’s closing timeline.

The team conducted a detailed analysis of the financial thresholds applicable to the concentration participants and submitted the relevant filing with the AMCU. The Committee confirmed that merger clearance was not required, allowing the parties to close the transaction promptly and proceed with integrating the asset into operational activities.

Conclusions

The success of investments in Ukrainian assets during the country’s economic recovery depends critically on the precision of legal structuring. As Ukrainian antitrust legislation continues to align with European Union standards, liability for breaches of concentration rules has grown more stringent. Miscalculations in threshold analysis or an oversight of control relationships can expose parties to substantial fines - and, in the most serious cases, invalidation of the transaction itself. A timely antitrust audit is therefore the essential first step in protecting foreign capital deployed in Ukraine.

Oleksandr Fefelov, Partner, Head of Antitrust and Competition Practice at Ilyashev & Partners

Anastasiia Leontieva, Lawyer at Ilyashev & Partners