Merger control amnesty
On 20 September 2016, the Head of the Antimonopoly Committee of Ukraine (AMC), Yuriy Terentyev, announced a six months extension (until 15 March 2017) for the so-called "amnesty" program regarding liability for the failure to obtain AMC's permit for concentration. The amnesty states that companies or individuals who have performed concentration at an earlier date without the AMC permit (when it was required) may retroactively apply to the AMC for a permit and pay a penalty of UAH 102,000. This procedure was initiated by the AMC on 15 September 2015 and, according or the Committee's Head, 180 applications were filed to the Committee between the program's launch and 15 September 2016.
Penalty Calculation Methodology
On 20 August 2016 the AMC approved amendments to the Guidelines on Fines (known as 'the Guidelines'). The current version of the Guidelines were approved by the AMC on 9 August 2016; this was the fourth edit of the document since 15 September 2015 (date of adoption of the first version). The Guidelines provide a number of essential innovations, in particular, the document sets out three adjusting factors (each in the range between 0.05 and 2) applied for calculation of the sum of the initial penalty based on the product sales income, impact or possible impact of the breach on adjacent markets and the social significance of the goods. The Guidelines also allows the determining of the baseline penalty on the calculation provided by the party in breach (namely, the calculation of the improper advantage and/or damages for the persons whose rights were infringed). Similar to the previous version of the Guidelines, the minimum baseline penalty for concentration without the AMC permit is set at UAH 170,000 except when the party in breach have applied to AMC under the "amnesty" program.
New merger control regulation
On 19 August 2016, the new AMC Merger Control Regulation came into effect. The new version was adopted following the amendments to the Law of Ukraine "On Protection of Economic Competition", which, among other things, increased the thresholds, launched a simplified procedure for review of concentration applications in certain cases and introduced a possibility of preliminary consultations with the AMC. According to the new Regulation: the list of documents and information to be filed by the applicants for concentration is significantly reduced. The Regulation also provides insight into the concept of "involved markets" and changes the approach to economic justification of concentration. The Regulation also cancels the need to submit the electronic version of the application using the AMC's specialized software.