4 October 2011
Ukrainian Leniency Rules to be Detailed
On 30 September 2011 the Antimonopoly Committee of Ukraine (the AMC) published draft Regulation detailing rules and procedures applicable to leniency applications in cartel cases (the Regulation). Beyond all doubt, the document is an important step towards better prevention, detection, and fighting cartels.
The possibility to apply for leniency has been in place in Ukraine since 2002, first introduced by the Law on Protection of Economic Competition (the Competition Act). However, the absence of clear and adequate procedural rules hindered its effective implementation. The long-awaited Regulation clarifies requirements to immunity applicants, details the information and evidence an undertaking should provide in order for its application to be successful, review procedure, etc. It also introduces several new concepts to the existing leniency regime: in particular, for the first time the term 'cartel' is defined in Ukrainian antitrust legislation; the document also introduces the marker system (equivalent to that existing in the EU), the possibility to benefit from partial (20-50%) fine reduction, etc.
Major innovations of the Regulation
I. Cartel Definition
A 'cartel' is defined as anticompetitive concerted practices concerning (exclusively):
The concept of a cartel is significantly narrower than that of the anticompetitive concerted practices (as defined in the Competition Act). Pursuant to general leniency rules of the Competition Act the participants of any anticompetitive concerted practices may apply for immunity, while the Regulation appears to apply to cartels only.
II. Immunity Requirements
Applicable requirements have been detailed to clarify:
The Regulation introduces detailed procedural rules:
IV. Reduction of fines
To maximize the information inflow, the Regulation encourages other participants (besides the first immunity applicant) to a cartel to submit additional available information in exchange for a partial (20-50%) fine reduction, etc. Evidence provided in such subsequent applications should have added value and the AMC has full discretion to decide whether such additional data is sufficient for the purpose. It appears that subsequent applicants may qualify for a partial fine reduction even after the AMC investigation has already been initiated.
The timing of adoption of the Regulation is not clear. Though, it appears to be one of the authority's top policy priorities and we expect its enactment in early 2012.
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© Asters 2011