On September 12, 2023, the President of Ukraine signed the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Improving the Activities of the Antimonopoly Committee of Ukraine" (hereinafter - the Law), which will enter into force on January 1, 2024. This is a significant step in the direction of strengthening the institutional capacity of the Antimonopoly Committee of Ukraine (hereinafter - AMC).
The second stage of the reform should, in particular, ensure the fulfillment of Ukraine's obligations to the International Monetary Fund, which relate to strengthening the independence of AMK. The development and adoption of the Law was conditioned by Ukraine's obligations under the Association Agreement with the EU regarding the approximation of Ukrainian competition legislation and application practices to the EU acquis communautaire. In certain parts, the Law follows the provisions of EU Directive 2019/1 of the European Parliament and the Council of December 11, 2018, with a certain interpretation.
The main changes proposed by the Law:
I. Changes ensuring the strengthening of the institutional capacity of the AMC
1. The rights and powers of the AMC in collecting information and evidence have been expanded
AMK has been granted the right of access to national and local databases, information on notarial actions and bank secrecy, including operations on the accounts of individuals...
2. The right to carry out inspections with the permission of the commercial court has been established
The AMC has been granted the right to conduct inspections in private properties, cars, etc., of individuals, if such persons are business entities and there are grounds to believe that there are evidences in the relevant places...
3. Compulsory collection of fines is allowed without court involvement
AMC received the right to issue orders for the compulsory collection of fines without the need to apply to the court for their collection...
4. The mechanism of inevitability of liability for violations has been strengthened
There have been cases of application of subsidiary and joint liability for the payment of fines for violations of the legislation on the protection of economic competition to companies belonging to a single economic entity...
II. Changes that expand the procedural rights and guarantees of the parties in violation cases and increase the transparency and predictability of AMK activities
1. AMC is obliged to publish information about its activities
AMC must publish on its official website information about market research, agendas of meetings, its decisions, recommendations, information about initiated infringement cases, information about concentration cases, concerted actions...
2. The period of investigation of violation cases is limited
The time limit for consideration of violation cases is limited to 3 years...
3. The procedure for determining the amount of fines is provided
The procedure for determining the amount of the fine imposed for a violation should be established by a normative legal act of the AMC, and not by advisory clarifications, which are an act of soft law and have no binding force either for the AMC or the courts, as is now...
4. The procedure for exemption from liability has been modernized
The Leniency system has been modernized, in addition to the already existing norms, which provide for the exemption from responsibility of the business entity that applied to the ÐÐœC first, admitted to the violation and provided essential information, introduced the possibility of reducing responsibility up to 50 percent for subsequent applicants, depending on the sequence of their application to AMC.
5. The procedure for settling cases has been introduced
A settlement procedure has been introduced in cases of abuse of a monopoly (dominant) position and anti-competitive concerted actions (except for conspiracies to distort the results of trades, auctions, contests, tenders) ...
6. The right to comment on, deny the content of hearing protocols in cases has been specified
A three-day deadline has been established for the AMC to draw up a protocol on conducting hearings in cases, and the right has been granted to persons who participated in such a hearing to familiarize themselves with the protocol and provide their objections, comments and explanations...
III. Other important changes
1. The system of control over economic concentrations has been modernized
Changes in the part of control over economic concentrations relate to modernization: determination of the content of economic concentration; the structure of the threshold indicators, in case of exceeding which permission of the AMC is required; the procedure for calculating such indicators for a number of similar transactions and when control is transferred to the acquisition object, etc.; application fees...
2. There is a limited time limit for appealing orders of the AMC
AMC must issue a reasoned order about the refusal to start the case review, which can be appealed to the commercial court within 2 months...
3. The number of complainants has been narrowed
The person who submitted a statement to the AMC must prove that his rights have been violated...
4. The law does not establish retroactive effect in time of its norms
The law does not extend to relationships that existed before its adoption ...
In general, it is expected that the expansion of the powers of the AMC, as well as the improvement of working conditions for the employees of the AMC, will allow the AMC to concentrate on analytical work within the framework of the consideration of cases and research, attract higher-level specialists to work in the AMC, strengthen the law enforcement function and increase the effectiveness of research and investigations and the standards of evidence used by the AMC in cases of violations of the legislation on the protection of economic competition.
Business entities, for their part, should adapt their local compliance programs to Ukrainian competition legislation (or take these features into account in general programs) taking into account the practice of its application, as well as the mentioned legislative changes. In addition, it is appropriate to conduct so-called mock down raids to check the company's readiness to strengthen the law enforcement function on the part of the AMC.
