This is an overview prepared by Redcliffe Partners based on the decisions issued by the Antimonopoly Committee of Ukraine (the "AMC") during the period from May 2016 to January 2017.
Merger control violations*
- The majority of fines for merger control violations in the referenced period (14 out of 20 fines) were imposed by the AMC in relation to foreign-to-foreign concentrations. The largest and the lowest fines for unauthorised foreign-to-foreign concentrations were EUR 12,067 and EUR 3,038, respectively.
- There is an increase in the number of fines under the "amnesty" procedure – the AMC imposed 57 fines for failures to have past mergers cleared, including 25 fines for foreign-to-foreign transactions. Companies can submit corrective merger filings under the "amnesty" procedure subject to a fixed fine of EUR 3,700 until 15 March 2017 for transactions which were completed before 15 September 2015.
*Please see pages 5-6 of the AMC Fines Review Table for more details
Investigations carried out by the AMC
- In the referenced period the AMC was particularly focused on investigating the following markets:
- distribution of tobacco products;
- retail sale of automobile petrol; and
- production and distribution of pharmaceutical products.
- As a result of these investigations, the following fines were imposed:
- a EUR 15.7 million fine, which was applied to a distributor of tobacco products for the abuse of its dominant position by means of the alleged pricing abuses and limiting its customers’ sales volumes in the absence of alternative sources of supply;
- a EUR 7.3 million fine (in total), which was applied to seven automobile petrol retailers, jointly representing approximately 50% of retail sales of light petroleum products, for the alleged parallel pricing behaviour; and
- relatively small fines of EUR 56,000 (in total) and EUR 126,000 (in total), which the AMC applied in two cases alleging anticompetitive concerted practices between pharmaceutical producers and their Ukrainian distributors regarding their pricing approaches.
**Please see pages 1-2 of the AMC Fines Review Table for more details
The AMC’s assessment of horizontal mergers becomes closer to the EU standards
- The AMC adopted the Horizontal Merger Guidelines which became effective on 29 December 2016. The Guidelines were developed based on the EU Horizontal Merger Guidelines and contain the principles to be used in the assessment of horizontal mergers by the AMC.
- Under the Guidelines the assessment of mergers will entail analysis of:
- market shares and HHI concentration thresholds;
- likelihood of anti-competitive effects in the relevant markets;
- likelihood of countervailing factors to potential anticompetitive effects (buyer power, market entry, and efficiencies); and
- conditions for a failing firm defence.
- The AMC Guidelines emphasise that analysis of the market shares and HHI thresholds is only one of the factors to be assessed. This is an important change from the previous approach of the AMC where market share analysis played a decisive role in the merger assessment.