On January 26, the Parliament of Ukraine adopted the draft law envisaging the increase of the existing financial thresholds that trigger the filing requirement in Ukraine. The Draft Law 2168a "On Increasing the Efficiency over Merger Control" has passed the first hearing on 12 November 2015 (the Draft Law 2168a).

The Draft Law 2168a offers a two-tier merger filing thresholds as opposing to one-tier test in the existing law.

The first tier triggers the filing requirement when (the text of this test was unchanged comparing to the first hearing of the Draft Law 2168a document):

  • the combined worldwide sales or assets of all the parties to the concentration exceed EUR 30 million and at the same time the sales or assets in Ukraine of each of at least two parties exceed EUR 4 million.

Alternatively, as to the second tier, the merger clearance shall be required if:

  • an undertaking, being the target of acquisition, the seller of assets or one of the JV's founders, exceeds EUR 8 million of sales or assets in Ukraine, while the sales turnover of at least one other party should exceed EUR 150 million worldwide.

NB: The wording regarding the second tier in the adopted version was changed comparing to the wording suggested in the first hearing. Previously, it was suggested that any one party shall exceed EUR 8 million in Ukraine, while in the current version EUR 8 million shall be exceeded by target (including all control relations) only.

These changes demonstrate that the Ukrainian law makers took into consideration the message from various international competition agencies, including the International Competition Network requiring that jurisdiction over a merger should be asserted based on the appropriate nexus between the transaction and the jurisdiction, including based on the operations of the target in such jurisdiction. By adopting the Draft Law 2168a a number of unrelated transactions will not require the approval of the Antimonopoly Committee of Ukraine that are caught by the current thresholds.

Based on the parliamentary voting, the Draft Law 2168a was approved yesterday and is now on its way for President's sign-off. The President shall sign the document within 15 calendar days after which the publication of the law shall be made in another 15 days. After the law is duly published, it will come into force in two-month period. Ultimately, the new amendments to the law shall come into effect as early as in the end of April 2016.

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