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Registered by

Ministry of Justice of Ukraine

March 21, 2002

No. 284/6572

ORDER ANTIMONOPOLY COMMITTEE OF UKRAINE

of February 19, 2002 No. 33-r

About approval of the Regulations on procedure for consideration of the applications and cases on concentration of subjects of managing

(as amended on 07-12-2023)

Being guided by article 8 of the Law of Ukraine "About the Antimonopoly Committee of Ukraine" and article 26 of the Law of Ukraine "About protection of the economic competition", the Antimonopoly Committee of Ukraine:

1. Approve Regulations on procedure for consideration of the applications and cases on concentration of subjects of managing which are applied.

2. Recognize the Regulations on control of economic concentration approved by the order of the Antimonopoly Committee of Ukraine of May 25, 1998 No. 134-r and registered in the Ministry of Justice of Ukraine on June 30, 1998 for No. 409/2849 (with changes and additions made by orders of the Antimonopoly Committee of Ukraine of January 29, 1999 No. 22-r of February 18, 2000 No. 31-r, of January 16, 2001 No. 3-r and of April 6, 2001 No. 48-r invalid.

Chairman of Committee

O. Kostusev

It is approved:

Vr.i.o. Chairman State

committee of Ukraine concerning regulatory

politicians and entrepreneurships

 

 

 

V. Zagorodny

The Order of the Antimonopoly Committee of Ukraine of February 19, 2002 is approved No. 33-r

Regulations on procedure for consideration of the applications and cases on concentration of subjects of managing

I. General provisions

1. This Provision is developed according to the Laws of Ukraine "About protection of the economic competition", "About the Antimonopoly Committee of Ukraine", "About lease of the state-owned and utility property" for the purpose of prevention of monopolization of the goods markets, abuse of the monopoly (dominating) position, competition restriction.

2. This Provision establishes procedure for filing of applications in the Antimonopoly Committee of Ukraine (further - Committee) about preliminary receipt of permission of Committee or Administrative board of Committee to concentration of subjects of managing and receipt of preliminary conclusions on concentration of subjects of managing, consideration of the applications and cases on concentration of subjects of managing.

3. Terms are used in this Provision in such value:

administrative board Committee-permanent administrative board of Committee, temporary administrative board of Committee;

the vertical relations (between participants of concentration) - the actual or potential, direct or indirect relations between participants of concentration, one of which acts on commodity markets, production and/or realization of which requires or can demand use of the goods rotating in the markets on which other participant of concentration acts;

the horizontal relations (between participants of concentration) - the relations between participants of concentration which compete or have opportunity to compete among themselves in the market with the same commodity and territorial (geographical) borders;

the state commissioner - the state commissioner of Committee;

permission permission of bodies of Committee to concentration;

the involved market of goods (goods market) - the market of goods (goods market) in which occurs or which concentration of subjects of managing, with certain commodity and geographical boundaries according to the Technique of determination of the monopoly (dominating) position of subjects of managing in the market, Ukraine approved by the order of the Antimonopoly Committee of March 05, 2002 No. 49-r registered in the Ministry of Justice of Ukraine on April 01, 2002 at No. 317/6605 influences or can affect;

statement statement for provision of permission to concentration or preliminary conclusions;

applicants - public authorities, local government bodies, bodies of administrative management and control, the lessee, the receiver of financial leasing, the concessionary, the lessor, subjects of managing, physical persons and legal entities which within the powers make the decision on concentration perform concentration, exercise control of object of acquisition of control;

the final beneficial owner (controller) - the physical person which irrespective of formal ownership has opportunity to perform decisive influence on management or economic activity of the legal entity is direct or through other persons. At the same time person having the formal right to 25 or more percent of the authorized capital or the voting power in the legal entity but which is the agent, the nominee holder (the nominal owner) or being only the intermediary concerning such right cannot be the final beneficial owner (controller);

unfriendly acquisition acquisition of the direct or mediated control over whole or parts of one or several other subjects of managing or other assets at the faces which are not exercising control over it in case of refusal of this subject of managing to provide to the applicant (authorized by it to person) information necessary for provision of permission of bodies of Committee;

bodies of Committee Committee, administrative board of Committee, state representative, administrative boards of territorial department of Committee;

indicators of participants of concentration cost (aggregate value) of assets I will also eat around (total volume) of sales of goods;

preliminary conclusions - preliminary conclusions concerning concentration of subjects of managing;

the markets of goods in which there is concentration are the markets in which turnover of goods which are made and/or implemented shall or will take place: subjects of managing which are formed as a result of merge or joining of participants of concentration; subjects of managing which are jointly created by participants of concentration; with use of property over which owing to concentration control is acquired; by subjects of managing, share (shares, shares) of which are acquired;

commodity markets which concentration influences or can influence - such markets are considered: commodity markets, production and/or realization of which requires use of the goods rotating in the markets in which there is concentration; commodity markets which use is required for production and/or the sales of goods rotating in the markets in which there is concentration; the markets in which the goods used or consumed together with goods which rotate in the markets in which there is concentration rotate;

the market of goods of the highest level (the ascending market) - commodity market, production (realization) of which are necessary for production (realization) of the goods rotating in the market in which concentration is performed;

commodity market of lower level (the descending market) - commodity market, production (realization) of which requires use of the goods rotating in the market in which concentration is performed;

financial leasing type of the civil relations arising from the agreement of financial leasing;

the term "concession" is used in this Provision in the value given in the Law of Ukraine "About concession".

Other terms are used in the value given in the Law of Ukraine "About protection of the economic competition" (further - the Law).

II. Concentration of subjects of managing

1. For the purpose of prevention of monopolization, to essential restriction of the competition in the goods markets, to abuse of the monopoly (dominating) position, coordination of behavior in the form of anti-competitive coordinated actions bodies of Committee exercise the state control of concentration of subjects of managing (further - concentration).

2. Concentration are recognized:

1) merge or joining of subjects of managing which were not connected by the control relations among themselves;

2) acquisition by one or several subjects of managing of the direct or mediated control over whole or parts of one or several other subjects of managing or other assets, in particular, in the way:

the direct or mediated acquisition, acquisition in property in a different way, obtaining in management, lease, leasing, concession or acquisitions in a different way rights to use by assets in the form of single property complex or structural division of the subject of managing, including acquisition of assets of the subject of managing which is liquidated;

the conclusion of transactions on acquisition of rights which allow to determine conditions of economic activity, to give mandatory orders or to perform functions of governing body of the subject of managing and/or to provide decisive influence on forming of governing body, on results of votes or decision making of the subject of managing by bodies;

the direct or mediated acquisition, acquisition in property in a different way or obtaining in management of shares (shares, shares) that provides opportunity to exert decisive impact, including achievement or exceeding of 25 or 50 percent of votes in the supreme body of management of appropriate subject of managing;

appointment or election to position of the head, deputy manager of the supervisory board, board, other supervisory or executive body of the subject of managing of person which already occupies one or several of the specified positions in other subjects of managing, or creation of situation in case of which more than a half of positions of members of the supervisory board, boards, other supervisory or executive bodies of two or more subjects of managing the same persons borrow;

3) Creation by two and more subjects of managing of the subject of managing which will independently perform full-function economic activity during the long period.

3. Indirect (through other persons) acquisition, acquisition in a different way in property, obtaining in management (use) of shares (shares, shares), assets (property) in the form of single property complex of the company or its structural division, this receipt by one legal entity or physical person of opportunity to influence realization of the rights following from ownership or management (use) of shares (shares, shares), assets (property) of other legal entity thanks to:

1) to control availability over persons who acquire in property or is received in management (use) by the specified shares (shares, shares), assets (property);

2) to availability or emergence of control over those legal entities who own or manage (use) the specified shares (shares, shares), assets (property);

3) to combination of the specified conditions.

4. Are not considered as concentration:

1) creation by two and more subjects of managing of the subject of managing which independently will not perform full-function economic activity during the long period. Such actions are considered as coordinated actions according to the paragraph by the second parts one of article 5 of the Law;

2) acquisition of shares (shares, shares) of the subject of managing by person which core activity is carrying out financial transactions or transactions with securities if such acquisition is performed for the purpose of the following resale of shares (shares, shares) provided that the specified person does not participate in vote in the supreme body or other governing bodies of the subject of managing. In that case the following resale shall be performed to the subjects of managing which are not connected by the control relations with this person whose core activity is carrying out financial transactions or transactions with securities, within one year from the date of acquisition of shares (shares, shares);

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