Notifiability tests in Ukraine
A concentration requires a merger clearance before closing if either Test A or Test B below is triggered for the preceding financial year:
TEST A (at least two parties have turnover or assets in Ukraine):
TEST B (only one party has turnover or assets in Ukraine):
For the purposes of the above tests the figures are calculated for entire corporate groups of the parties taking into account all legal entities and individuals (i.e., ultimate beneficiary owners/controllers and their family members (i.e., spouse, children, parents, ceilings)) which are directly and/or indirectly related by control relations to each of the parties to a concentration.
If during the last two financial years and the current financial year, a target (including its subsidiaries) has not had any Ukrainian assets and has not been engaged in any business activities in Ukraine, then a controlling seller’s financial indicators would not be taken into account (subject to termination of control relationships with such a controlling seller as a result of a concentration).
The local nexus is presumed once a concentration meets the jurisdictional thresholds even if the parties do not have overlapping activities in Ukraine. There are no specific forms of local presence or sales necessary for the AMC to have the competence to review the transaction.
Calculation of turnover/assets
The turnover threshold shall be considered for the financial year preceding a concentration, whereas the assets shall be valued as of the last day of the financial year preceding a concentration.
The turnover includes sales through a subsidiary, branch, sales representative office, or direct sales to customers located in Ukraine, as well as sales from another country to Ukraine. The turnover generated from intra-group sales shall not be taken into account.
With respect to the asset-based threshold, the relevant accounting measure for valuation is the book value of assets under the financial and consolidated accounts. The term ‘asset’ includes all types of assets (tangible, intangible, etc.).