This norm will further contribute to the quality of preparation of issues on economic concentration.

Thus, in accordance with the Law of Ukraine „On Banks and Banking“, the National Bank of Ukraine sets economic standards for all commercial banks: capital ratios (in particular, bank capital and minimum authorized capital), liquidity ratios, etc.

From the point of view of the antimonopoly legislation of Ukraine, it is common for the types of reorganization to reduce the number of independent business entities operating in the market. Therefore, the basic notion for antitrust law is the concept of control, the definition of which is given in the Law of Ukraine „On Restriction of Monopoly and Failure to Unfair Competition in Entrepreneurial Activity“.

Control – the decisive influence of a legal or natural person on the economic activity of an economic entity, which is carried out, in particular, through:

the right to own or use all or a significant part of them; the right that provides a decisive influence on the formation of the composition, voting results and decisions of the governing bodies of the entity; concluding agreements that make it possible to determine the conditions of economic activity, to give mandatory instructions or to perform the functions of the governing body of the business entity; replacement of the position of the head, deputy head of the supervisory board or board, other supervisory or executive body of the business entity by a person who already holds one or more of the specified positions in other business entities; holding more than half of the positions of members of the supervisory board, board, other supervisory or executive bodies of the entity by persons who already hold one or more of these positions in another entity.

Accordingly, in antitrust law, a group of business entities is also recognized as a single business entity if one or more of them exercise control over the others. All actions that lead or may lead to changes or redistribution of areas of activity of economic entities in the market, in antitrust law are combined with the concept of economic concentration. The scientific literature also uses similar in meaning general terms „integration“ of chapter 3 ethan frome summary „merger“ of firms, which is divided into horizontal merger, vertical merger and merger of conglomerates, and others.

The actual merger (in the broad sense of the term, not in the narrow sense – as the formation of a new business entity on the basis of several who lose in the process of such reorganization not only economic independence but also the rights of legal entity ) is the creation of holding companies and some types of connections.

Thus, the problem of reorganization, mergers and acquisitions of economic entities, along with the positive consequences of these actions for production activities and financial condition of participants in such economic concentration, as well as the development of relevant sectors of the economy, may have a negative impact on competition in relevant markets. and hence for the country’s economy.

To prevent and eliminate such negative effects, a system of control over economic concentration has been created and is functioning. The Law of Ukraine „On the Antimonopoly Committee of Ukraine“ which defines the powers of the Committee, establishes, in particular, that the Antimonopoly Committee of Ukraine within its competence has the right to „prohibit or allow the creation of monopolies by central and local executive bodies, local and regional governments, and also by economic entities „.

Thus, control over economic concentration, which is carried out in accordance with the requirements of Articles 14 and 15 of the Law of Ukraine „On Restriction of Monopoly …“ is one of the most important areas of the Committee’s work.

The Law of Ukraine „On Banks and Banking“ provides that the reorganization (merger, acquisition) of commercial banks is carried out in consultation with the Antimonopoly Committee of Ukraine in cases provided by applicable law. Regulations on the procedure for establishing and registering commercial banks, approved by the resolution of the National Bank of Ukraine dated 21.0798 No. 281, require approval of the Committee’s constituent documents (memorandum, articles of association and minutes of the constituent assembly), as well as providing a copy of the Committee’s decision to establish an appropriate commercial bank in cases provided by law.

The procedure for establishing holding companies is determined by the Regulations on holding companies created in the process of corporatization and privatization, approved by the Decree of the President of Ukraine „On holding companies created in the process of corporatization and privatization“ of 11.05. 94 No. 224/94. According to it, a holding company is defined as an economic entity that owns controlling stakes in one or more economic entities (subsidiaries). Two main directions of creation of holding companies in the process of privatization are defined:

their establishment by bodies authorized to manage state property, state privatization bodies independently or together with other founders; acquisition of one business entity by another (acquisition of a controlling stake) in the privatization process. In this case, the acquiring business entity is recognized as a holding company, and the acquired entity is recognized as a subsidiary.

These documents set out three main procedural points that need to be agreed with the Committee when creating a holding company:

approval of the idea of ​​creating a holding company; confirmation of a controlling stake if its size is less than 51 percent; approval of draft constituent documents and share placement plans.

Consent to the concentration by the bodies of the Committee is given in cases where it does not lead to the emergence of monopolies, strengthening the dominant position of the parties to the concentration in the relevant commodity markets or a significant restriction of competition.

These conditions are met, in particular, when creating associations that are vertically integrated structures; in cases of integration of economic entities operating in different markets, even if there are monopoly entities among the parties to the concentration; associations of entrepreneurs, primarily associations, the purpose of which is to perform representative functions in relation to their members, coordination of their activities in areas and in a way that does not restrict competition between them, and provided that these associations do not carry out business activities.

The Committee pays special attention to issues of economic concentration with the participation of foreign entrepreneurs.

3. Liability for violation of the law in the implementation of economic concentration In accordance with the law, the implementation of economic concentration without the consent of the Committee is a violation of antitrust law. For example, in 1997, 54 such cases were identified, in which cases were initiated and appropriate decisions were made.

However, it should be noted that until April 1998, the legislation did not provide for financial sanctions for this type of violation of antitrust law by the Law of Ukraine of 03.03. 98 amendments to the Law of Ukraine „On Restriction of Monopoly“ according to which liability in the form of a fine for this violation was introduced. The third paragraph of the first part of Article 19 of the Law provides for liability for economic concentration without the consent of the Antimonopoly Committee of Ukraine or its bodies in cases where the law provides for such consent, in the form of fines for businesses – legal entities up to 5% of revenue of business entities from sales.

The dynamics of mergers (acquisitions) of enterprises in Ukraine can be analyzed according to the annual reports of the Antimonopoly Committee of Ukraine. After all, there is a mechanism that requires businesses to obtain the permission of this Committee to enter into such agreements for reorganization.

So let’s build a graph that reflects the dynamics of mergers (acquisitions) in Ukraine (Fig. 1).

Fig. 1. Dynamics of mergers (acquisitions) of enterprises in Ukraine in the period from 1994 to 1999.

It should be noted that these indicators do not reflect the total number of considered applications and appeals. A significant part of the applications and appeals received by the Committee’s bodies are not subject to consideration as not reaching the thresholds established by law.

Analyzing the results of the Committee on Economic Concentration over the short years of its existence, we can conclude that the practice of such a control system has fully proven its necessity and effectiveness as a means of preventing market monopolization and competition. The number of cases considered by the Committee’s bodies is declining due to the influence of the following factors.

First, businesses, authorities and administrations in most cases are consulted by the Committee before submitting an application. As a result, some entrepreneurs abandon the intention to implement economic concentration, others take into account the explanations and requirements of the Committee. In addition, the new version of the Regulation on control of economic concentration, approved by the order of the Committee of 25.05. 98, provides for the possibility of formally obtaining preliminary opinions of the bodies of the Committee on the planned concentration. This norm will further contribute to the quality of preparation of issues on economic concentration.

Secondly, in a significant number of cases, the Committee’s bodies stipulate in their decisions that consent to the concentration is stipulated by the relevant obligations, in the performance of which there will be no restriction of competition.

Third, the decrease in the number of decisions taken by the Committee on economic concentration is due to several reasons:

due to the growth of the US dollar against the hryvnia, the thresholds for the value of assets, sales volumes, and property for which the approval of the Committee is required, set in dollar terms, have actually almost doubled since 1998; The number of applications for consent to join business associations has significantly decreased, which is due to an objective reduction in the number of business associations.

The most significant decrease in the decisions of the Committee on economic concentration occurred in the acquisition or acquisition of shares (stocks, shares) of economic entities, due to the completion of mass privatization and, consequently, reduction of sales of shares created in the privatization process.