• Sergey Denisenko

    Partner, Aequo

    Sergey has 15 years of hands-on experience in antitrust and competition. The main aspects of work include merger clearance and concerted actions, protection against unfair trade practices and competition compliance. Sergey regularly represents clients in abuse of dominance and concerted actions investigations conducted by the regulator.

    Mr. Denisenko is highly recommended as the leading expert in antitrust and competition by reputable international and local legal rankings such as Chambers Europe 2017-2019, Best Lawyers in Ukraine. Sergey was named the Lawyer of the year in antitrust and competition according to Best Lawyers 2020

  • Yevgen Blok

    Senior Associate, Aequo

    Yevgen has 10 years of experience in Antitrust and Competition area. Yevgen advises on various competition issues, including on merger clearance, concerted actions, abuse of dominance, unfair competition practices. He also has solid experience in conducting antitrust due diligence and competition compliance trainings. Yevgen is recognized as a next generation competition lawyer according to the Legal 500 ranking

AEQUO

 

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Aequo is an advanced, industry-focused Ukrainian law firm made up of highly-qualified, internationally recommended lawyers who work proactively to help their clients reach their business goals. Backed by solid industry expertise and thorough understanding of business we develop innovative strategies and provide efficient solutions to the most complex and challenging matters.

Aequo provides integrated legal support in areas such as antitrust and competition, banking and finance law, intellectual property, corporate and commercial law, mergers and acquisitions, taxation, litigation and international arbitration, and capital markets.

The list of Aequo’s representative clients includes leading Ukrainian and international companies and organizations like Agroprosperis, Apax Partners, Apollo, Bunge, DuPont, EBRD, European Commission, Google, Inditex Group, NCH Capital, Pioneer Hi-Bred International, Samsung Electronics, Sandvik, Synthon, Tetra Laval, Ukrainian Redevelopment Fund, UniCredit Group, Vodafone Ukraine, etc.

Aequo has been named among Top 20 most innovative law firms in Europe by FT Innovative Lawyers 2019, recognized as the “Most Innovative Law Firm of the Year 2018” in Ukraine at the IFLR Europe Awards, Law Firm of the Year in Russia, Ukraine and the CIS by The Lawyer European Awards 2017; and recommended by Chambers, The Legal 500, IFLR1000 and Best Lawyers.

 

Antitrust Land

The abolishment of the moratorium on sale of agriculture land has been intensely discussed by politicians as well as by experts and business environment for years. Those who support the moratorium’s abolishment, including foreign creditors, expect development of the agricultural industry and economic growth due to the lifting of the moratorium. At the same time, their opponents see a number of threats and negative consequences that the abolishment of moratorium can lead to, including the possible monopolization of the market through its capture by unknown “Chinese” investors who will enter the market and buy up all the agricultural land. This matter has become particularly relevant now as on 31 March 2020 the Ukrainian Parliament
adopted the law that would repeal the ban on sale of agricultural lands starting from 1 July 2021.

 

Access to the New Commodity Market

If the draft law comes into force, some categories of persons (acquirers) can obtain access to the new commodity market in Ukraine. According to official data, the size of this market is estimated at 42.7 million hectares. Thus, there is a need for state authorities to ensure fair competition on this market and to prevent its monopolization. Probably for these purposes the draft law provides, in particular, for restrictions on the maximum areas of agricultural land that can be acquired by one individual or legal entity.

 

Control Mechanisms and Role of the AMCU

At the moment it is not clear which state body will be authorized to exercise control over compliance by business entities with requirements and restrictions on acquisition of agricultural lands. There is also uncertainty as to the mechanisms that could be implemented for exercising such control.

It is likely that the Antimonopoly Committee of Ukraine may act as such controlling state body, based on its tasks, functions and established practice. It is worth mentioning that the AMCU is well aware of the peculiarities, structure and the main players of the agricultural market. In recent years, the largest number of concentrations has taken place specifically on the agricultural market. For example, in 2019, the number of merger clearance permits issued on agricultural markets amounted to 21% (93 permits) out of the total number of issued permits, while in 2018 their number amounted to 24.2% (108 permits) out of the total number of issued permits.

The current wording of the Law of Ukraine On the Protection of Economic Competition does not directly treat acquisition of ownership title to agricultural land as a concentration. Consequently, some may argue that potential deals on the sale and purchase of agricultural land do not fall under the control of the AMCU. However, according to the statements of some officials, the AMCU has been already involved in developing a draft law capturing deals on the sale and purchase of agricultural lands under merger control (in order to eliminate the mentioned gap in the legislation). Thus, there are reasonable assumptions to believe that transactions on the sale and purchase of agricultural lands will, nevertheless, be subject to merger control by the AMCU. Although the specific draft law has not been published as of the date of this article, we can assume that thresholds triggering a merger clearance event might be one of the most controversial issues of such a draft law. Such thresholds may include:

– the parties’ financial indices; and/or

– the particular total area of the land to be eventually controlled by the acquirer as a result of the deal; and/or

– the particular total market share to be achieved by the acquirer as a result of the deal;

– or certain other criteria triggering merger clearance events.

In addition, in the absence of specific antitrust regulations governing transactions on the purchase and sale of agricultural lands, attention should be paid to the term “single property complex” (the acquisition of which requires a prior permit of the AMCU if the financial thresholds are exceeded by the parties), added to the Law of Ukraine On the Protection of Economic Competition on 19 September 2019. The term “single property complex” includes a non-exhaustive list of property, including rights to land plots. Such a broad concept may allow the AMCU to apply quite flexible approaches to determining whether a particular asset could be treated as a single property complex. Thus, one may not exclude that deals on the sale and purchase of agricultural land would fall under antitrust control even if specific regulations governing this matter will not have been adopted by the date of lifting of the moratorium. Nevertheless, the business environment and experts expect the state authorities to introduce clear rules and a balanced approach to this issue.

 

Foreign Experience

In the EU, the agricultural land market is regulated at the national level, taking into account fundamental principles, such as non-discrimination and free movement of capital. The legislation of several EU countries (Romania, Poland, Hungary, Slovakia) contains rules aimed at preventing the concentration of agricultural land and speculative deals. For these purposes, local laws may provide for a set of restrictions and pre-conditions for deals involving agricultural land, in particular:

– special restrictions/requirements may be applied to potential buyers of agricultural land;

– restrictions as to the maximum area of land plots which may be acquired by one group of related persons;

– a requirement to obtain a prior permit from the relevant state regulatory body as a pre-condition for completing the deal on acquisition of agricultural land plots.

For example, Latvia’s legislation stipulates, among other things, restrictions on the maximum area of land plots which may be acquired by a group of related persons. Furthermore, foreign purchasers shall prove a certain level of knowledge of the Latvian language. In addition, potential purchasers shall obtain the permit from the authorized local state body to complete the deal. Potential purchasers are exempted from obtaining a permit for acquisition of agricultural lands if, in particular, they will own minor area of land as a result of the deal.

 

Conclusions

In accordance with European practice, the introduction of certain restrictions and control mechanisms over the purchase and sale of agricultural lands are reasonable and appropriate steps for the effective operation of the market. Given there is an appropriate legal framework, such restrictions and control mechanisms can serve as due tools for preventing monopolization of the market and other possible negative consequences.

For the time being, priority should be given to the development of balanced legal regulation and control over agricultural land sales transactions. In particular, one expects a list of clear criteria for obtaining a permit and exemptions from obtaining one.

The agricultural land market might be opened up before all relevant regulations are introduced. It may not be excluded that parties would carry out the first transactions in the area of legal uncertainty and thus run additional risks. However, it seems that finally the AMCU will exercise control over agricultural land transactions and compliance through undertakings with their respective clearance obligations (as the case may be). The AMCU has extensive experience and knowledge of the agricultural market, and its specialists have been processing data on leased agricultural land plots for years.