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In recent months the Antimonopoly Committee of Ukraine (AMCU) has adopted a number of important recommendations in various areas of enforcement of competition law. In particular, it adopted its “Methodological Recommendations on Definition of Control” that provide guidance on the definition and assessment of control. While these recommendations bring some level of certainty in relation to the AMCU’s approach on what practices may constitute control, they also clearly show the AMCU’s shift from the role of passive observer with a formalistic approach to a watchdog sanctioning businesses for “gun-jumping”.
The first half of 2019 was remarkable in terms of two unprecedented AMCU decisions that imposed fines for merger control violations on DCH Group (UAH 58 million, approx. EUR 1.9 million) and TAS Group (UAH 55 million, approx. EUR 1.8 million). The AMCU now tends to impose higher fines, and this trend is likely to continue.
In terms of cartels and investigations, in 2018, the AMCU focused on monitoring and investigating the energy market, pharmaceuticals, the TMT, transport and infrastructure markets. We expect that the AMCU’s targets for 2019 will not change dramatically. In this vein, in May 2019 the AMCU imposed fines for price collusion on the (petrol station) companies WOG, OKKO and SOCAR for a combined amount of UAH 77 million (approximately EUR 2.6 million). In terms of Ukraine’s pharmaceutical market, which has always been closely monitored by the AMCU, 2018 saw a number of high-profile investigations.
In February 2019, the AMCU issued recommendation guidelines on the application of legislation concerning the protection of economic competition by participants in pharmaceutical markets that had signed vertical agreements with respect to the supply and promotion of medicines. These guidelines are focused on the assessment of vertical agreements in the pharmaceutical sector and clarify which distribution practices (sales promotion activities, discounts, bonuses, pricing conduct, reporting obligations, etc.) may have an anti-competitive effect.
In February 2019, the Ukrainian Parliament adopted a draft law introducing and enhancing a number of instruments for the regulation of competition law. While the Ukrainian president returned the draft law (one point of contention is the abolition of penalties for failure to pay a fine), it is expected that the changes proposed by the draft law will be adopted. The most notable changes proposed by it include an improved leniency policy, the introduction of a settlement procedure in cartel cases, and the determination of time limits for AMCU investigations.
In terms of litigation arising in connection with competition law violations, the statistics are somewhat limited, as there have been relatively few private antitrust damages actions to date in Ukraine. However, we see growing interest in relation to the private enforcement of antitrust damages, which could well become a new trend.
The largest and extremely experienced team on the market in all aspects of antitrust and merger control projects is Asters, which is constantly named the undisputable leader. The firm showcases notable expertise acting in numerous high-profile antitrust probes and investigations, often retained by several parties, spanning abuse of dominance, cartels, concerted practices, unfair competition. The firm has traditionally handled the largest number of most significant merger cases in Ukraine, and secured the largest number of Phase II clearances. Significant representations include obtaining merger clearance for USD 71.3 billion acquisition by the Walt Disney Company of 21st Century Fox; obtaining merger and antitrust clearances for the approx. USD 17 billion acquisition by Blackstone of control over Thomson Reuters’s financial and risk business division. In addition to the firm’s traditional active work across agrochemicals, pharmaceutical, retail and FMCG, tobacco industry, Asters increased its presence in the automotive, energy and transportation sectors. The most sizeable team has three dedicated partners on board. Igor Svechkar is a recognized leader among Ukrainian antitrust practitioners, referred for his extremely broad experience in merger filings and consistently successful in case investigations. Oleksandr Voznyuk is singled out for successful representation of clients in investigations carried out by the AMCU. Over the last couple of years Alexey Pustovit has maintained an active competition law practice and shifted his focus to international trade matters.
With its long-term presence on the top of the Ukrainian market, Sayenko Kharenko is the undisputable top-end antitrust team, offering full-service expertise and handling the most complicated cases involving blue-chip international and local companies. The team is very well connected with big international law firms, and is constantly present in merger control work for global and cross-border deals. Recent highlights include obtaining merger clearance for the USD 62 billion acquisition of Shire plc by Takeda Pharmaceutical Company Limited; USD 11.1 billion acquisition of General Electric Company by Westinghouse Air Brake Technologies Corporation; representation of Merck KGaA in the acquisition of its assets by the Procter & Gamble Company; USD 7.6 billion acquisition by BASF SE of seeds businesses from Bayer Aktiengesellschaft. Sayenko Kharenko is widely known for handling antitrust investigations against major multinationals. The firm currently represents several multinational corporations in relation to unfair competition and anticompetitive concerted practices investigations before the Antimonopoly Committee of Ukraine. Promoted to partner in early 2019, Maksym Nazarenko has many years of experience of a broad range of antitrust law issues. Reputable partner Vladimir Sayenko, who heads the team, leads both competition, corporate and M&A practices. He is the primary point of contact for foreign clients carrying out complex cross-border mergers. Counsel Valentyna Hvozd is another key practitioner with noted experience of merger control work.
Rapidly expanding its market presence, the dynamic team at AEQUO has a highly recognized top practice that covers the entire spectrum of antitrust and competition issues, including merger control, concerted practices, abuse of dominance, unfair competition, public procurement. Recent highlights take in representing ArcelorMittal S.A., Nippon Steel and Sumitomo Metal Corporation in connection with the establishment of a JV with over USD 5 billion in investment and acquisition of joint control over Essar Steel India Limited; representing Apax Partners and Canada Pension Plan in connection with obtaining a merger clearance permit for acquisition of an equity stake in GlobalLogic Holdings Limited; obtaining merger clearance and non-compete permits from the AMCU in the course of acquisition of certain parts of GFK company research division by Ipsos S.A. This past year was noted for the flourishing practice of investigations initiated by the Antimonopoly Committee of Ukraine, including cartel and abuse of dominance cases, as well as other anti-competitive practices in a range of key industry sectors including agriculture, DIY and food retail. The team renders ongoing and regulatory advice for a number of pharma clients and assists in implementing competition compliance programs in Ukraine. Managing partner Denis Lysenko, a renowned multifaceted lawyer, heads the team. Sergey Denisenko, counsel, actively contributes to remarkable practice growth and is noted as an outstanding performer. Yevgen Blok, senior associate, is a key member of the competition team.
Baker McKenzie’s office in Kyiv works with its wide network of offices on prominent global transactions, being especially noted for complex merger control work in Ukraine. Among the notable highlights is representing Servier, an international pharmaceutical company, in connection with merger control and concerted actions filings relating to acquisition of oncology business of Shire; ADM, a global food-processing and commodities trading corporation, and Cargill, Inc., in connection with merger control filings in Ukraine relating to the establishment of a JV; Sumitomo Mitsui Financial Group in connection with several merger control filings in Ukraine related to contemplated reorganization of its auto- and aircraft leasing business in Japan; Platinum Equity in several merger control filings relating to acquisition of blood glucose monitoring business of Johnson & Johnson as well as representing Sumitomo Corporation, in connection with merger control filings related to the establishment of two new JVs with Toyota Motor Corporation and Hino Motors, Ltd. The office is enlisted by large industrial clients for representation on numerous market investigations conducted by the Ukrainian competition authority. Oksana Simonova is well regarded on the market as one of the busiest competition law practitioners. Olga Mikheieva, senior associate, is another key practitioner of the competition practice group.
Arzinger’s antitrust and competition practice developed into full-service offering, including merger clearances, post-clearances in gun-jumping cases; investigations and cases regarding alleged abusive dominance and unilateral practices, concerted actions, cartels and litigation. The full-service firm is preferred by both international and domestic names from the agricultural, automotive, energy, telecoms, FMCG, pharma sectors. Given the firm’s exceptional following of pharmaceutical clients, its team is enlisted to act on the most significant representations in AMCU investigations, unfair competition, anti-competitive concerted practices, regulatory matters and litigation. Arzinger stands out for its automotive antitrust track record, investigations and compliance. Managing partner Timur Bondaryev is often referred to as a versatile practitioner, and is noted for his focus on the automotive and energy sectors. Lana Sinichkina is mostly known for deep involvement in pharmaceutical antitrust. Sergii Shkliar, partner, returned from working at the Ministry of Justice. Oleksander Dyakulych, who has been recently promoted to counsel, receives market feedback from peers.
AVELLUM’s antitrust and competition practice is known mainly for merger control work fuelled by firm’s extensive portfolio of corporate and M&A instructions. The team expands its offering for investigations and compliance. Over the previous year the team acted as Ukrainian legal counsel to Uber on obtaining merger control clearance for creating a JV with Yandex; advised EVO Group on obtaining merger control clearance from the Antimonopoly Committee with regard to merger with Rozetka Group; assisted Horizon Capital on obtaining merger control clearance for the sale of Ergopack to Sarantis Group; advised MTB Bank on antitrust aspects of its merger with Bank Center. Partners Mykola Stetsenko and Yuriy Nechayev supervise this practice. Yaroslav Medvediev, of counsel, is named as a dedicated practitioner.
CLACIS, a Ukrainian competition law boutique, focuses on matters of competition law and compliance in Ukraine and the broader CIS region. The core focus of the team is investigations and litigation, while complicated merger clearance instructions also regularly come across its remit. The client base includes sound international names like MasterCard, ArcelorMital, British American Tobacco, etc. During the research period the boutique acted in such sensitive sectors as telecommunications, pharmaceuticals, transportation, tobacco and others. Antonina Yaholnyk, founder and managing partner, is recognized for her long-standing presence on the market.
CMS Cameron McKenna Nabarro Olswang1 has a steady workflow of merger control filling mandates, regulatory, antitrust compliance and unfair competition. The team advises Scatec Solar in obtaining several merger control approvals from the AMCU for several ongoing investment projects in different regions of Ukraine. Senior partner Olexander Martinenko is known for being an active member of the Public Council of the AMCU and for his valuable contribution to this practice. Olga Belyakova enjoys recognized expertise.
Dentons traditionally acts on large M&A, joint ventures and combination transactions, providing its international clients with competition and antitrust legal support. Among illustrative latest projects is advising JoinUP on complex competition law matters in connection with corporate restructuring; CUB Energy with regards to Ukrainian Solar Project, in particular, assistance with investments in Tysa Solar LLC. Apart from merger clearance, the team regularly advises on cross border distribution agreements under Ukrainian competition law. The firm has a well-established presence in regulated industries such as pharma, retail, energy and tobacco. Henkel is a notable client. Volodymyr Monastyrskyy is a lead partner. The team was strengthened with the arrival of Oksana Franko, senior associate, from EPAP Ukraine.
DLA Piper handles merger clearance in cross-border M&A and joint venture arrangements, regulatory advice and competition compliance, unfair competition, anti-competitive concerted practices. Over its long-standing presence on the market, the practice group has expanded industry knowledge spanning pharmaceuticals, energy, IT, manufacturing, FMCG, hospitality sectors. In 2018 the team represented Italian chocolate maker Ferrero on obtaining merger control clearance for its USD 2.8 billion acquisition of Nestle’s US confectionary business; Michelin for establishing a joint venture with Sumitomo Corporation of Americas; Haas Group for the sale of their global group in Austria to Bühler AG. Galyna Zagorodniuk, partner, is a recognized competition professional, combining it with active corporate and M&A work. Andrii Zhupanyn, associate, has been noted for providing merger clearances and general advice on competition law.
Ilyashev & Partners has a growing antitrust and competition practice handling instructions for obtaining merger and concerted clearances; unfair competition and abuse of dominance cases. Selected highlight includes obtaining merger clearance for acquisition of shares in JSC Kyivspetstrans. Ukrrichflot JSC, the firm’s long-standing client, has been represented in the Antimonopoly Committee of Ukraine in cases on violation of law on protection of economic competition by Ukrainian Railways and the Ukrainian Sea Ports Authority. The team regularly represents clients in investigations carried out by the AMCU, most currently acting for Master-Avia LLC with regard to investigation of anti-competitive concerted actions. Other areas of focus include competition matters in commercial agreements and public procurement. For example, the firm advised Xiaomi on its distribution agreements. Oleksandr Fefelov, the practice head, has been promoted to partner.
INTEGRITES provides key offering on various competition and antitrust matters, and boosted the practice with comprehensive cases, especially competition enforcements that were linked to pharmaceutical, tobacco production market, petrol and market of mineral fertilizers. The firm had a huge portfolio of representations in these investigations. For example, the firm defended the interests of PJSC Farmak regarding the abuse of dominant position on the national medical substances market; advised Turkish Airlines during an investigation on the Ukrainian aviation market. The team acted as legal counsel to Panasonic so as to protect its rights violated with the unauthorized usage of the client’s trademark. In 2018 the firm extended the number of cases of complex transactions in the sphere of merger clearances. The practice is led by senior partner Vyacheslav Korchev, with key input from counsels Serhiy Shershun and Pavlo Loginov2.
The Ukrainian office of Kinstellar rapidly expanded its antitrust and competition practice, which received a big inflow of instructions from corporate and M&A instructions. Some recent landmarks include obtaining merger control clearance for opening Aloft Kyiv (the first Marriott-managed hotel in Ukraine); merger control and concerted practices clearances for MET Group in connection with acquisition of a 98.99% stake in the registered capital and voting rights in Tigáz Zrt from Italian oil and gas giant Eni; advised Nemiroff Vodka Limited in connection with obtaining approvals for corporate restructuring. The team possesses experience in commercial practices, unfair practices, competition litigation. It is noteworthy that the team also enhanced its presence in AMCU investigations. Kostiantyn Likarchuk, managing partner, heads the firm’s practice. Mykyta Nota, counsel, has competition law among its core focuses, and demonstrated deep practical involvement over the past year.
Marchenko Partners (the team previously operated as Marchenko Danevych) is highly active in advising clients on contract and behavior compliance, competition investigations (cartels, abuse of dominance and unfair competition). Moreover, the firm stands out for being pioneers of state aid complaints, and represented Nova Poshta, leader of the Ukrainian delivery service market, against Ukrposhta (Ukrainian state-owned postal operator). The firm practices private antitrust litigation containing claims for damages which follow from infringements of competition law. Furthermore, the firm advised one of the top 25 pharmaceutical companies on potential antitrust risks related to probable refusal to deal with a distributor in Ukraine; Eli Lilly on cooperation with its Ukrainian distributors and a client’s pricing policy; continued advising NEXT Retail on unfair competition aspects related to illegal usage of a client’s trademark by a local online and bricks and mortar shop. Practice head Oleksandr Aleksyeyenko has a remarkable reputation on the market, being very active and combining competition and IP expertise.
Given the well-established workflow of corporate and M&A mandates, Redcliffe Partners boosted its new antitrust and competition practice with a steady portfolio of transactional assignments. The office’s recent achievements include advising CVC in acquisition of Recordati S.p.A. from shareholders of FIMEI; SALIC on obtaining several mergers for acquisition of Mriya Agro Holding; Ukrnafta on various antitrust issues related to the potential sale of its gas production assets to Naftogaz of Ukraine. In 2018, apart from a steady workflow of merger clearances, the team increased its standing in competition investigations, commercial practices and competition compliance issues. The practice’s breakthrough is noted, as is the exceptional contribution of its head of Anastasia Usova, counsel.
CMS Reich-Rohrwig Hainz supports clients on merger control within M&A and corporate structuring work handled by the office and advises on antitrust regulatory matters. The firm rendered legal support to Conwert Group in the preparation and filing of merger clearance in connection with the sale of its Ukrainian SPV, which is an owner of the largest Class A business center in Zaporizhzhya, to Dragon Capital Investments Limited. The Kyiv team, as led by partner Maria Orlyk, has won a high-profile instruction from the EBRD on a three-year complex project aimed at capacity building of the Antimonopoly Committee of Ukraine, which involves coordination of a team of international and local experts from multiple European jurisdictions, delivery of a series of educational seminars and preparation of commentaries to current laws as well as support in elaborating internal instruments of the AMCU.
Vasil Kisil & Partners operates across regulated markets, including energy, pharmaceuticals, tobacco and alcohol. Among illustrative recent projects is advising LNZ group in obtaining merger clearance from the AMCU in the acquisition of Ukrainian agricultural companies. The firm demonstrates consistent involvement in investigations and disputes. The practice team represented the Ukrainian subsidiary of a global producer of spare parts for automotive vehicles and engines as a defendant in a case regarding unfair competition. Litigation highlights include representing Alliance Holding (Shell retail subsidiary in Ukraine) in antitrust litigation regarding abuse of dominance in several regions of Ukraine. In the past year the firm received assignments on public procurement and state aid. Anna Sisetska, partner, heads the practice.
During 2018 Wolf Theiss was actively involved in advising clients on competition law issues, especially obtaining merger clearances in Ukraine. The office is a part of a Europe-wide network, and is regularly involved in the fulfillment of merger clearance requirements in terms of multijurisdictional M&A transactions. Selected highlights include advising Hisense, a Chinese multinational major appliance and electronics manufacturer, on antitrust matters related to acquisition of shares in Gorenje; advising Munich Re on merger control issues with regard to the sale of its Ukrainian subsidiary to Eurions; antitrust due diligence of one of the largest Ukrainian telecommunication companies for its potential acquisition by A1 Telekom Austria AG. The firm also advised Champion, a Canadian pet food producer, on antitrust issues related to vertical (distribution) agreements. Olga Ivlyeva is head of the practice.
Legal Alliance Company focuses its legal advice in pharmaceuticals and healthcare, its niche industry which is scrutinized by Ukrainian competition authorities. The team’s recent workload related mainly to probes by the AMCU regarding anticompetitive concerted actions, as well as unfair competition on the pharmaceutical market. The firm protected the interests of one of the leading distributors regarding possible vertical anticompetitive concerted actions on the drug distribution market; assisted in obtaining AMCU conclusions regarding compliance of marketing agreements concluded with pharmacies and pharmacy chains; represented the interests of an international pharmaceutical company with regards to unfair competition. Partner Andrii Gorbatenko enjoys extensive market feedback for deep expertise in pharmaceutical antitrust.
Ante Law Firm acts for aviation and pharmaceutical clients on public procurement conflicts and unfair competition practice cases. The firm assisted Sanofi-Aventis Ukraine regarding a distribution discount as well as unfair competition practice when another company used its trademark; advised Zdravo with public procurement matters. The team is known for its market leading position in aviation, regularly advising airlines on airport fees and sector-specific antitrust issues. The team recently provided legal advice to Lviv Airport in an investigation regarding access to the handling services market at the airport. Andriy Guck, partner, runs the firm’s competition projects.
ECOVIS Bondar & Bondar has a primary focus in aviation and infrastructure sectors, acting for clients on a broad range of competition matters, including antimonopoly clearance in connection with M&A and high-profile competition investigations. The firm is known for resonant litigation cases in aviation. Most recently the team represented Ukraine International Airlines (UIA) in three lawsuits against Lviv Airport and the Ministry of Infrastructure for competition in the sector; advised UIA with regard to violation of competition legislation by Lukoil Aviation (now called Amic Aviation). Oleg Bondar, managing partner, and Oleksandra Nikitina, partner, took over the practice.
In 2018 Pavlenko Legal Group boosted its M&A practice with instructions in the agricultural sector. The firm supported Eridon, the leading Ukrainian company in distribution of plant protection products, fertilizers and seeds of foreign selection, in a series of acquisitions of agrarian businesses, including obtaining merger clearances from the AMCU. Anna Hryshchenko (Kremnyova) joined the group to head this practice.
Sergii Koziakov & Partners advises on merger clearance and concerted practice filings, violation of legislation on protection of economic competition and antitrust litigation. The firm very recently advised General Motors on acquisition of merger clearance in a large-scale merger in Ukraine. The firm also acted for Budhouse Group Limited and Agricom Group Limited on optimal restructuring of assets; assisted IAS Boryspil SC with accompaniment and perception of the AMCU’s concentration clearance. The practice is led by partners Mykola Podpalov and Nataliia Isakhanova.
Dr. Alexey Kot, managing partner of ANTIKA Law Firm, a reputable practitioner in antitrust/competition, received praise from peers for his scientific achievements and thorough approach. This past year the team of the firm represented several clients in a number of high-profile investigations of the Antimonopoly Committee of Ukraine, handled merger control work, competition compliance and procurement matters.
Jurline, an Odesa-based law firm with vivid entry to big regional clients, provides legal support in antitrust law, including merger cases, unfair competition, public procurement review. The firm regularly deals with obtaining permissions for concentration as a part of the corporate restructuring of clients. The firm has a well-established niche in the wine business, regularly acting for PTK Shabo (TM Shabo). Oleksiy Ryazanov is in charge of the practice.
As a boutique firm, ADS Legal Group deals exclusively with competition law. The firm provides legal advice on obtaining merger clearance, interactions with the regulator, and has dedicated expertise in public procurement and state aid. Managing partner Olexander Bondarchuk runs the competition practice at the firm.
EY Ukraine provides transaction-related antitrust legal support for its clients. Over the previous year the team represented Sarantis in connection with obtaining merger clearance and permit for acquisition of shares in Ergopack from Horizon Capital and the founders of the business; Horizon Capital in obtaining merger clearance for investment in Intellias. Albert Sych and Bogdan Malnev are the primary contacts.
1 СMS is represented by two offices in Ukraine.
2 He joined the Antimonopoly Committee of Ukraine in June 2019.
- Oleksandr Aleksyeyenko (Marchenko Partners)
- Olga Belyakova (CMS Cameron McKenna Nabarro Olswang)
- Timur Bondaryev (Arzinger)
- Oleksander Dyakulych (Arzinger)
- Oleksandr Fefelov (Ilyashev & Partners)
- Andrii Gorbatenko (Legal Alliance Company)
- Valentyna Hvozd (Sayenko Kharenko)
- Dr. Alexey Kot (ANTIKA Law Firm)
- Denis Lysenko (AEQUO)
- Yaroslav Medvediev (AVELLUM)
- Maksym Nazarenko (Sayenko Kharenko)
- Alexey Pustovit (Asters)
- Serhiy Shershun (INTEGRITES)
- Oksana Simonova (Baker McKenzie)
- Lana Sinichkina (Arzinger)
- Anastasia Usova (Redcliffe Partners)
- Antonina Yaholnyk (CLACIS)