On March 13, 2012 the Parliament of Ukraine passed in first reading governmental Draft Law No. 10006 "On Peculiarities of State Procurement in Single Business Spheres".
The Draft Law envisages peculiarities of state procurements in single spheres connected with the natural and oil gas, heat energy, electricity, drink water, public railway infrastructure and some other. It is envisaged to set much higher limits for procurement procedures at the expense of budget funds for companies with 50% state share or at the expense of own funds for companies having special or exclusive rights (goods/services – UAH 2.5 million, works — UAH 5.5 million). Special or exclusive rights mean rights given by a state agency or a local selfgovernment authority within its scope of powers based on any regulatory legal act and/or individual actions that restrict exercise of activity in spheres, determined by this law, to one or several persons which considerably influences ability of other persons to exercise activity in such spheres.
According to the explanatory note to the Draft Law passing of the draft law is directed at harmonization of the 10 Arzinger. Newsletter legislation with European laws, in particular, with Directive 2004/17/ЕС dd. 31 March 2004 that stipulates simplification and improvement of procedures in the water, energy, transport, and telecommunication sectors. The directive states that main reasons for establishment of rules for coordination of the contract conclusion procedures in these spheres is the variety of methods using which national authorities could influence behaviour of such institutions, including their share in the capital or representation in administrative, management or supervisory bodies of institutions, as well as close nature of markets of their application due to existence of special or exclusive rights given by the state for supply, ensuring or management of supply chains of respective services.
Therefore, the idea of the Draft Law complies with European practice, though list of spheres is wider. Still, it shall be mentioned that the Directive is not applied if there is competition on the market (services of air transportation, telecommunication services, shipping industry). Practically, the Directive does not refer to a certain list of markets as basis for application of simplified procurement procedures at the expense of state funds by companies on such markets. Including certain markets of the list a necessary but not sufficient condition for simplification of procurement procedures, and a key factor to be examined is availability or lack of the competition on the certain market. At this, the explanatory note contains no reference to research of the competition environment on the markets to become subject of simplified procurement procedures at the expense of state funds as basis for application of such simplified procedures in the context of European experience. Besides, notion of "special or exclusive rights" envisaged in the draft law is unclearly defined and, in our opinion, shall be determined by analogy with European legislation, single law on state aid which as of today has not been passed in Ukraine yet. There are also some remarks to the legislative technique of this Draft Law expressed by the Main scientific and expert department of the Parliament of Ukraine in its comments. Therefore, the Draft Law requires improvement and its application in this version does not exclude ways for abuse and restriction of the competition on certain markets.
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