Adopted Law on New Rules for Protection of Economic Competition

On February 7, the Law on Ensuring the Principles of Procedural Justice and Improving the Efficiency of Proceedings in Cases of Violation of the Law on The Protection of Econimic Competition (Bill No. 6746) was adopted . The Bill was approved as a basis early as November 9, 2017. It was sent for a re-reading in April 2018, and prepared for review only in December.

The law regulates the procedure for the consideration of cases of violation of the law on the protection of economic competition, the timing of consideration and expands the list of participants in the case and their rights.

The article 22¹ of the Law “On the Antimonopoly Committee of Ukraine” defines  that a person, who submitted information to the Antimonopoly Committee of Ukraine, requested in connection with the investigation of the commodity market outside the limits of the consideration of cases on violation of the law on the protection of economic competition, 12 months prior before a repeated demand , may not provide information , if it has not changed, by notifying the Antimonopoly Committee of Ukraine in writing  indicating  the details of the previously sent letter.

Starting from 2020, the law introduces a settlement procedure for cases of anticompetitive concerted action. The procedure starts at the request of the defendant, filed before drawing up a presentation  on the previous findings of the case  by  the Antimonopoly Committee of Ukraine, This statement must contain the defendant’s consent to begin negotiations on the conclusion of a settlement agreement, including an agreement to pay the fine. The Antimonopoly Committee of Ukraine shall report  on the results of the consideration of the application within 10 working days from the date of its receipt. This period may be extended until an expert opinion is received or other actions, necessary to collect and record evidence that may be lost over time or that cannot be carried out later without significant harm to their result and which are important for the anti-monopoly authority to evaluate the feasibility of a settlement agreement,  are completed.

The settlement procedure with the defendant is considered to be initiated wnen  the Antimonopoly Committee of Ukraine in writing  consented  to the procedure application.

Within 15 working days from the date of commencement of the procedure, the AMCU informs the respondent in writing about the violation that is being settled, in particular about the acts that can be qualified as a violation, the goods (commodity markets) and the geographical limits of the commodity markets that are covered by the violation, the duration of the violation, a pre-calculated fine that can be imposed on the defendant without the use of a settlement procedure, and the justification for its calculation.

The settlement procedure is terminated in cases where:

• – there is no agreement with the respondent on the issues raised;
• – the respondent failed to send the settlement agreement signed by him to the AMCU;
• – the economic court refused to approve the settlement agreements.

The decisions of the Antimonopoly Committee of Ukraine cannot be based on the evidence that the persons, involved in the case, were given no opportunity to review (except in cases  of restricted legitimate access to information) and provide feedback, as well as cannot be based on the evidence obtained in violation of the law and the rights of individuals. No decisions can be made in violation of the right to defense.

The decisions of the Antimonopoly Committee of Ukraine must be  reasoned: they indicate the circumstances, the evidence-based decision, the rationale for accepting or rejecting the evidence of participants.

The Law on the Protection of Economic Competition is supplemented by a new article 52¹ defining the procedure and the grounds for the exemption from liability and the reduction of fines for committing anti-competitive actions. For exemption from liability for anti-competitive actions, an appropriate statement must be submitted to the Antimonopoly Committee of Ukraine.

For persons who cannot be discharged due to the fact that another member of the relevant anti-competitive concerted actions submitted an application earlier and who voluntarily appealed to the Antimonopoly Committee of Ukraine to reduce the amount of the fine providing the evidence of anti-competitive concerted actions that are essential for decision on the case, the amount of the fine is reduced depending on the order of presentation of the evidence:

• 50% reduction of the fine to the 1^st person
• 30% reduction of the fine to the 2nd person
• 20% reduction of the fine to next person

The Antimonopoly Committee of Ukraine establishes the procedure to file the applications for exemption from liability, to reduce the number of fines for providing the evidence on anticompetitive concerted actions and provides the implementation of such a reduction.

The law comes into force three months from the date of its publication, except for the provisions on the settlement procedure, which come into force on January 1, 2020.

The Regulation  on the timing of cases on violation of the Law On the Protection of Economic Competition and the consequences of missing the deadlines for the consideration of such cases is applied to cases initiated by  the Antimonopoly Committee of Ukraine after the entry into force of this Law.

The Law is adopted with technical and legal amendments.