AMC Adopts Fining Guidelines and Quasi-Amnesty for 'Corrective' Merger Filings

Following public consultations, on 15 September 2015 the AMC adopted Guidelines on calculation of fines in competition cases. The document has recommendatory nature and most notably suggests that: the basis for fine is limited to Ukrainian turnover (or other benefits) generated from activities on the relevant and, in certain cases, adjacent market(s) that was received in connection with the violation for the period from its commencement to termination or the AMC fining decision (but not longer than the applicable statute of limitations); the ceiling for basic amount of fine is established at, in particular (in each case within the relevant general statutory limit of 10%/5% of group-wide global annual turnover, as applicable): 45% for (i) hard-core horizontal concerted practices, including bid rigging, and (ii) abuse of dominance resulting in prevention, elimination or substantial restriction of competition; 30% for (i) other anticompetitive concerted practices, (ii) other cases of abuse of dominance, (iii) failure to implement the AMC decision, (iv) implementation of a concentration resulting in monopolization or substantial restriction of competition, and (v) failure to implement undertakings applied in merger and concerted practices cases; 5% for implementation of non-problematic concentrations; certain aggravating (repeat offence, its lasting nature, failure to co-operate throughout the AMC investigation, etc.) and attenuating (voluntary termination of violation or compensation of damages, co-operation, etc.) factors may significantly increase or decrease the fine; importantly, a fine for failure to have past mergers cleared shall be limited to approx. EUR 850 provided that a ‘corrective’ filing is made within the 6-month grace period following publication of the Guidelines (or to approx. EUR 4,200 if such filing is made within the subsequent 6 months). The Guidelines also recommend that the AMC and its divisions shall satisfy confidentiality requests from such quasi-amnesty applicants with respect to fining decisions; maximum fines envisaged by the Competition Law (with reference to global turnover or that achieved at a non-relevant market) may be imposed only under exceptional circumstances to achieve deterrence effect.

For further information please contact Asters' partners Igor Svechkar and Alexey Pustovit.

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