Ukraine: Ukraine Approximates Procedural Fairness Standards In Antitrust Proceedings With Those Of The EU

Last Updated: 15 February 2019
Article by Anastasia Usova and Nataliya Kovalyova
Most Read Contributor in Ukraine, September 2019

On 7 February 2019, the Ukrainian Parliament adopted a new law (the "Law") introducing long-awaited amendments to the Laws of Ukraine "On Protection of Economic Competition" and "On the Antimonopoly Committee of Ukraine", which are aimed to ensure procedural fairness and rights of defence in antitrust proceedings in Ukraine. The Law is adopted in line with Ukraine's obligations under the Ukraine EU Association Agreement, and implements certain new mechanisms and procedures which are partially based on approaches used in the conduct of the proceedings by the European Commission. In particular, the Law provides for:

i. Introduction of a settlement procedure in cases on cartels and other anti-competitive concerted practices from 1 January 2020. To settle a case, amongst other things, a company must acknowledge its liability for the infringement. As a result of the settlement, a reduction of 20% will apply to the penalty. The Antimonopoly Committee of Ukraine (the "AMC") retains a broad margin of discretion to determine which cases may be suitable for a settlement. A settlement decision can be issued by the AMC only after the commercial court approves the settlement agreement. Thereafter, a company may not appeal the AMC's decision in court on the grounds acknowledged by the company during the settlement procedure.

ii. Introduction of partial immunity within the leniency procedure. Companies which do not qualify for full immunity (i.e., those which did not first inform the AMC of an undetected cartel or other anti-competitive concerted practices) may benefit from a reduction of fine if they self-report and provide significant evidence enabling the AMC to make a decision on a case. The first company to meet these conditions is granted 50% reduction from the amount of the fine which the AMC would have otherwise imposed on it, the second 30%, and subsequent companies 20%. These amendments may boost the incentive for companies to apply for leniency, which was underused in Ukraine in the past as only the first applicant could benefit.

iii. Separation of investigative and decision-making powers. The AMC official who initiated or undertook the investigation of the case shall not participate in the adoption of the decision by the collegiate body of the AMC which considers the respective case.

iv. Introduction of the procedure for consultations. While investigating a case on infringement, the AMC officials, either on their own initiative or at the request of the parties involved in a case, may hold consultations in relation to such a case. In particular, factual and legal aspects of the suspected violation, and the possibility of voluntary termination of the violation, may be discussed at the consultations.

v. Elimination of the late payment penalties for failure to pay a fine which amounted to 1.5% of the fine per day of delay.

vi. Introduction of the withdrawal procedure in case of conflict of interest. The AMC officials, including the Chairman and State Commissioners, and other specialists such as experts involved in the antitrust investigation shall withdraw from such a case if they are conflicted according to the Law of Ukraine "On Prevention of Corruption". Also, such a withdrawal may be requested by the parties involved in the case.

The Law also introduces statutory deadlines for investigations of cases on infringement (such deadlines did not exist before), in particular:

  • 5 years: for investigations on anti-competitive horizontal agreements;
  • 1 year: for investigations on (i) failure to obtain merger clearance and (ii) unfair competition cases;
  • 6 months: for investigations on (i) failure to fulfil the decision of the AMC; (ii) failure to meet a deadline for provision of information to the AMC or submission of incomplete or inaccurate information; (iii) obstruction of the AMC's inspections;
  • 2 years: for investigations on other types of violations that are not specified above.

All of the above terms start anew if a new respondent or co-respondent is involved in the case and may be extended up to six months in certain cases, e.g. if the AMC needs to collect additional information which was not provided upon its previous request.

The Law has yet to be signed by the President of Ukraine and will become effective three months after its official publication, except for the provisions regarding the settlement procedure, which will enter into force on 1 January 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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