Ukraine brings antimonopoly legislation closer to EU requirements: new step in the reform

On August 9, 2023 the Ukrainian Parliament (Verkhovna Rada) adopted in general the draft law No. 5431 "On Amendments to Certain Legislative Acts of Ukraine on Improving the Activities of the Antimonopoly Committee of Ukraine." It will change essentially the powers of the AMCU and its functioning. [1]

Find out more about the key changes it introduces.

Detailing the powers of the AMCU in the inspection procedure

The Law clearly defines that the basis for conducting inspections will be the decision of the commercial court. It also specifies the place and objects for which the inspection can be carried out, and the scope of actions that can be carried out by the Committee's employees. In addition, the requirements for the collection of evidence are established.

According to the new law, the Committee's employees will have the right:

• To have unimpeded access to the premises of enterprises, institutions and organizations, to places of storage of information in the possession and/or use of economic entities, associations, authorities, local self-government bodies, administrative and economic management and control bodies (computers, technical means of electronic communications and information storage, servers, safes, workplaces of employees, etc.), regardless of their location;
• To copy and/or receive copies of such information; to impose arrest or seize objects or other information carriers, documents, including their originals, sealing premises, electronic communication systems, or information storage places in a way that makes it impossible to get access to their content;
• To conduct an inspection of the premises and other possessions of economic entities, associations, authorities, local self-government bodies, administrative and economic management, and control bodies that are inspected.

A new procedure for access to information by AMCU employees

The new provisions, in particular, clearly indicate that the processing of received information by the Committee`s employees and its territorial offices must be carried out in compliance with the legislation on the protection of personal data and ensuring confidentiality. The changes also provide that the AMCU will have access to automated registers, banks (databases), and other systems for collecting, storing, processing, and searching for information, that will be carried out using the Electronic Interaction System, and in the absence of technical possibilities for such interaction – on the basis of contracts concluded with the holders (administrators) of relevant systems, registers, data banks (databases), other systems for collecting, storing, processing and searching for information.

Changes in the hearing procedure and access to case materials

The Law provides the possibility of technical recording of hearings, providing clarification, objection, explanation, and comments on the minutes of the hearing and adding to the case of granting permission for concerted actions, concentration, and violation of the legislation on the protection of economic competition of information, documents, and things that were provided and received during the hearing.

Requirements for openness and transparency of the AMCU

Under the new Law, these requirements will include one on the mandatory publication on the official website of the AMCU of information on market research (reports on the results of market research) within ten working days from the date of their approval, the amount of information that must be published, and the procedure for such publication.

New procedure for settlement and release from liability of offenders

According to the new settlement procedure [2], in cases of anticompetitive concerted actions and abuse of a monopoly (dominant) position on the market, companies will be able to obtain a 15% reduction in the amount of the fine by concluding an agreement with the AMCU.

Grounds for exemption from liability were also approved, subject to compliance with the relevant conditions. Exemption from liability will be possible if the individual:

• has disclosed such anticompetitive concerted actions to the AMCU;
• has ceased to participate in anticompetitive concerted acts no later than the day of the application for exemption from liability unless such participation in anticompetitive actions is necessary to ensure the integrity of the case;
• has cooperated with the AMCU bodies on the principles of, in particular, efficiency, timeliness of information provision, completeness and reliability of the information provided, duration of cooperation;
• has provided sufficient evidence for the case which hasn’t been available to the AMCU.

For those business entities that cannot be fully exempted from liability due to the fact that such exemption is received by another participant of the relevant anti-competitive concerted actions, who submitted a relevant application earlier, a partial exemption from liability by reducing the amount of fines will be applicable. Depending on the priority of the appeal, a reduction of the fine will be possible in the following amounts:

• for the first applicant – up to 50%;
• for the second applicant – up to 30%;
• for the third applicant – up to 20%.

Improved mechanism of enforcement of AMCU’s decisions and status of an executive document

The AMCU will have to issue orders on the enforcement of decisions based on the results of consideration of cases of violation of legislation on the protection of economic competition, including the collection of a fine. This means that there will be no need to re-apply to the court for an order to appeal the relevant decision to enforcement.

Draft Law No. 5431 is an important first stage of the antimonopoly legislation reform, which is a requirement for Ukraine's accession to the EU. It is currently awaiting the signature of President Zelensky, after which it will enter into force in accordance with the requirements of the law of Ukraine.

• [1] In particular, changes were made to the following legislative acts: Laws of Ukraine "On the Antimonopoly Committee of Ukraine", "On the Protection of Economic Competition", "On Access to Court Decisions", "On Sanctions", "On State Registration of Legal Entities, Individual Entrepreneurs and public formations", "On State Aid to Business Entities" and the Economic Procedural Code of Ukraine.
• [2] Article 46-1 and Article 52-1 of draft law No. 5431 "On Amendments to Certain Legislative Acts of Ukraine on Improving the Activities of the Antimonopoly Committee of Ukraine".