Проблемні питання здійснення концентрації шляхом одержання в оренду активів у вигляді єдиного майнового комплексу

The article is devoted to the study of problematic issues related to concentrations through leasing of assets in the form of a single property complex. Its relevance is due to the harmonization of national legislation with the European Union legislation. Along the way, the scope of regulation of concentrations of business entities has changed. In particular, control over concentration arising from the lease of single property complexes of business entities was introduced. At the same time, Ukrainian legislation has several regulatory definitions of the concept of «single property complex». However, the definition of antitrust law leads to confusion between the transfer of an ordinary property complex or an integral property complex and a single property complex. Such legal uncertainty puts business entities in a “non-privileged” position and leads to abuse of discretion by the antimonopoly authority. After all, when transferring/leasing a property complex, business entities do not apply for prior merger clearance (if they have the relevant financial indicators), as they do not consider it a single property complex. At the same time, the antimonopoly authority may initiate proceedings and bring liability for concentration without the required prior merger clearance. At the same time, it applies the definition of “single property complex” of the antimonopoly legislation without taking into account the essence of legal relations. In this regard, the article describes the features of a single property complex at the legislative and theoretical levels. We propose to make appropriate legislative changes. In particular, it is explained that a single property complex has two groups of assets: tangible and intangible. Tangible assets include land plots, buildings, structures, equipment, and raw materials. Intangible assets include rights and obligations arising from various contracts, exclusive rights to intellectual property, as well as the right to a trademark or other designation, claims and other rights. Therefore, if only premises with equipment are leased without any other intangible assets, this legal phenomenon cannot be considered a lease of a single property complex. Thus, it cannot be considered a form of concentration.