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Cartel leniency in Ukraine: overview
1. What laws provide for a leniency programme and which regulatory authority administers it? Is there any published guidance?
Applicable laws and guidance
A leniency programme is provided for in Article 6 of the Law of Ukraine On Protection of Economic Competition (Competition Law) and is further detailed in the Regulation of the Antimonopoly Committee (AMC) of Ukraine on the Procedure for Release of Liability No. 399-p of 2012 (Leniency Regulation).
The Leniency Regulation is available on the official website of the Ukrainian Parliament (Verkhovna Rada) (in Ukrainian only): http://zakon0.rada.gov.ua/laws/show/z1553-12.
The AMC administers the leniency programme (see box, The regulatory authority).
Scope of application
2. What infringements of competition law does the leniency programme cover?
The leniency programme covers any anti-competitive concerted practices (that is, its scope is potentially broader than secret cartels). The programme provides for immunity from the administrative fines that the Antimonopoly Committee may impose on an undertaking. There are no criminal sanctions for cartels and other anti-competitive practices, or administrative penalties such as orders disqualifying a person from management positions in Ukraine. The leniency programme does not cover non-punitive orders.
3. What notable recent cases have applied the leniency programme?
Although the possibility to apply for leniency has been in place since the enactment of the Competition Law in 2002, the absence of procedural guidance and satisfactory guarantees for applicants prevented the relevant provision from being tested in practice. The Leniency Programme came into force in October 2012 and relevant practice is very limited. There is currently no publicly available information on the adoption of any leniency decisions.
Availability of leniency
4. Is full immunity from administrative fines available? What conditions must be met for immunity to be granted?
Full immunity from administrative fines is available, subject to the following conditions (to be met cumulatively): The applicant is the first to notify the Antimonopoly Committee (AMC) about the anti-competitive concerted practice. The notification is voluntary and is filed before the AMC issues a statement of objection in the relevant investigation case. The information provided is material for revealing the concerted practice, essentially meaning that it is sufficient for the AMC to find an infringement. The applicant provided all available evidence and/or information concerning the violation. The applicant took effective measures to cease its participation in the anti-competitive practices.
No immunity can be granted if the applicant: Failed to end its involvement in the alleged infringing activities immediately following its application, except for the purpose of further collection of evidence as agreed with the AMC. Was an initiator or a co-ordinator of the infringement. Failed to provide all relevant information and evidence related to the alleged infringement that came into its possession or was available to it.
The applicant is considered to have provided all relevant information and evidence if it: Provided the AMC with all information and evidence relating to the alleged infringement that is available to it within the period established by the AMC. Did not destroy, falsify or conceal relevant information or evidence. Co-operated with the AMC throughout the investigation.
5. Is there a sliding scale of available leniency from administrative fines?
Both the Competition Law and the Leniency Regulation provide only for full immunity (see Question 4), while reductions in fines are not addressed.
In practice, the basic amount of the fine that can be imposed by the Antimonopoly Committee (AMC) is 15% of the turnover of the undertaking from the sales of products on the relevant (and adjacent) markets, for the period from the commencement of the violation until its termination or the AMC's fining decision. This amount is subject to possible further adjustments based on the aggravating and/or mitigating factors of the case. The total amount of the fine per violation cannot exceed the higher of: 10% of the turnover generated by an undertaking (on a group level) in the year preceding the fining decision. Triple the amount of profit arising from the prohibited agreement/practice.
The AMC Guidelines on Fines provide the following non-exhaustive examples of mitigating factors: Voluntary termination of a violation, before the AMC commences a case on the violation of competition laws. Compensation of damages caused by a violation or remedying the consequences of the violation in other manner. Elimination of conditions that caused a violation. De-facto non-compliance with the cartel terms accompanied by evidence that the participant has actually competed on the market. Co-operation with the AMC. Commission of a violation under the pressure of a public authority.
Examples of aggravating factors are: Initiating or co-ordinating actions (inactions) that constitute a violation. Obstructing a case investigation. Refusing to co-operate with the AMC. Repeated violation (if the AMC has adopted a decision on a previous violation in the past).
The AMC has made public statements that it will adequately reward subsequent applicants (without specifying or limiting their number) and this has already been tested in a case involving a bid suppression cartel (no leniency was formally applied in that particular case).
6. Is immunity or leniency for administrative fines available to individuals? If so, what conditions apply?
There is no liability for individuals, unless they act as undertakings, for example, private entrepreneurs (as opposed to acting in the capacity of managers or employees of an undertaking). Therefore, there is no need for a leniency programme for individuals.
However, if managers or employees do not co-operate with the Antimonopoly Committee in the investigation, the relevant corporate leniency applicant may not be granted immunity.
7. Is immunity or leniency available for companies and/or its employees in relation to criminal prosecution? What are the implications for employees when an undertaking has been granted immunity or leniency?
There is no criminal liability for anti-competitive concerted practices for companies or their employees.
Proceedings against employees
Not applicable (see above, Circumstances).
Not applicable (see above, Circumstances).
8. When should an application for leniency be made?
An application must be made prior to the Antimonopoly Committee (AMC) issuing a statement of objection in the relevant investigation case. Therefore, applications are welcome even after the AMC opened the investigation and may have already collected evidence.
9. What are the procedural rules for leniency applications?
An application must be submitted to the Antimonopoly Committee's (AMC) central office and addressed to the relevant officer of the AMC responsible for accepting leniency applications.
The application must be filed by an authorised officer or authorised representative of the undertaking.
There is no possibility or procedure for obtaining informal guidance.
Form of application
The application must be in writing and contain the information required for the grant of immunity (see Question 4) or securing a marker (see below, Markers).
An applicant can secure a marker, which must be perfected within a period to be specified by the AMC, up to a maximum of 30 days.
To secure a marker, the applicant must provide the following information: Information about its participation in an alleged cartel. Duration of its participation in the alleged cartel. Information about all the other parties to the alleged cartel known to the applicant, including the individuals that have been involved in it.
The applicant must provide information and evidence that is material for proving the concerted anti-competitive practices. In addition to the information indicated above (see above, Markers), the following must be provided, for example: A detailed description of the alleged cartel arrangement. Contents of agreements, notes and correspondence. Minutes of meetings.
Submission of the application with a detailed description of the alleged cartel arrangement is regarded as sufficient admission of the infringement.
Oral statements are not accepted.
10. What are the applicable procedures and timetable?
After submitting the leniency application, the applicant will immediately receive a copy of the minutes confirming the date and time of the application, which serves as acknowledgement of receipt. If requested, the Antimonopoly Committee (AMC) will also inform the applicant within one day. If an applicant secures a marker first, that marker must be perfected within a period specified by the AMC, up to a maximum of 30 days (see Question 9, Markers).
The AMC is not required to make any indication as to whether the conditions are met by the applicant and immunity is likely to be granted until rendering the final decision in the case.
There are no fixed deadlines for the AMC to finish the investigation. In practice, the vast majority of investigations last between six months and one year.
Withdrawal of leniency
11. In what circumstances and at what stage of the proceedings can leniency be withdrawn? What implications does the withdrawal of leniency from one company have for other applicants?
Immunity may be withdrawn if the Antimonopoly Committee (AMC) discovers that the applicant: Failed to end its involvement in the alleged infringing activities immediately following its application, except for the purposes of further collection of evidence as agreed with the AMC. Was an initiator or a co-ordinator of the infringement. Failed to provide all relevant information and evidence related to the alleged infringement that came into its possession or was available to it.
Such withdrawal does not have any implications for other applicants, as their applications cannot be considered by the AMC due to a failure to satisfy the immunity condition of being the first to notify the AMC (see Question 4).
Leniency can be withdrawn when the final decision is issued or within five years from its issuance (through reconsideration of the final decision by the AMC).
Scope of protection
12. What is the scope of leniency protection after it has been granted?
Immunity is only available with respect to the infringing activities disclosed in the application.
13. Does the competition authority offer any further reduction in fines for an undertaking's activities in one market if it is the first to disclose restrictive agreements and practices in another market (leniency plus)?
The law does not provide for such reductions in fines.
14. Does the grant of leniency affect a third party's ability to bring a follow-on damages action against a leniency applicant?
The grant of leniency does not protect the applicant from a third party's follow-on damages action. The amount of damages is twice the amount of the actual damage sustained.
Confidentiality and disclosure
15. What are the rules relating to confidentiality during a leniency application?
If requested by the applicant, the Antimonopoly Committee (AMC) must ensure confidentiality of the applicant's identity during the investigation. A final decision may disclose the applicant's identity.
Until the AMC issues a statement of objection, other undertakings under investigation can familiarise themselves with the information provided by a leniency applicant, except confidential information and information the disclosure of which may create obstacles for further investigation.
The applicant can request confidentiality of information provided. In this case, it should prepare a non-confidential version of the application and documents to be shared with other undertakings under investigation.
See Question 16, Domestic submissions and domestic discovery and Question 17.
16. What are the rules concerning disclosure of statements made in support of a leniency application?
Domestic submissions and domestic discovery
There are no special rules on whether the information submitted by the applicant can be made subject to discovery orders in the Ukrainian courts. Under the Law on Ensuring Transparency of the Antimonopoly Committee's (AMC) activities (Transparency Law) that came into force on 3 March 2016, any confidential information received by the AMC is not subject to disclosure, except on request of the state investigatory authorities (in the context of criminal proceedings) or the courts.
Domestic submissions and foreign discovery
There are no limitations with respect to discovery of domestic submissions in foreign courts. It appears that such discovery may be possible, for example, under the European Convention on Mutual Assistance in Criminal Matters 1959.
Foreign submissions and domestic discovery
There are no provisions of Ukrainian law that prevent information submitted in foreign jurisdictions from being made subject to discovery orders in the Ukrainian courts.
17. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities from other jurisdictions in relation to leniency? If so, what is the legal basis for and extent of co-operation?
The Antimonopoly Committee can co-operate with regulatory authorities from other jurisdictions, including by transferring the information to foreign competition authorities under a relevant international treaty. Confidential information can only be provided to a foreign competition authority if that authority: Will use the information exclusively for carrying out its duty. Can ensure that the information will not be disclosed for other purposes.
Proposals for reform
18. Are there any proposals for reform?
According to public sources, some members of the Ukrainian Parliament are working on a draft law providing for reductions in fines or partial immunity for second and subsequent leniency applicants (with the detailed procedure to be further established by the AMC). The draft law should then be officially added to the agenda of the Ukrainian Parliament. However, the prospects of its adoption remain unclear.
Antimonopoly Committee of Ukraine (AMC)
Description. This is the AMC's official website. The information is available in Ukrainian only.
The regulatory authority
Antimonopoly Committee of Ukraine (AMC)
Outline structure. The AMC is the principal state authority entrusted with ensuring protection of competition in entrepreneurial activities and state procurement. It comprises the Chairman and eight State Commissioners. The AMC has territorial divisions and administrative boards. The central office of the AMC has a number of departments, sections and industry-specific working groups (for example, concentrations and concerted practices, unfair competition, state procurement).
Responsibilities. The AMC's responsibilities include: Review and analysis of applications for approval of concentrations and concerted practices. Investigation of violations of Ukrainian competition laws, including unfair competition and abuse of dominance cases. Market research, working out approaches to market definition (for example, by product, geographical scope). General supervision of compliance with Ukrainian competition laws by undertakings and state and local authorities.
Procedure for obtaining documents. The following are published on the authority's website: Main competition laws and regulations. Draft laws and AMC regulations. Various other AMC documents (for example, annual reports on the AMC's activities). Non-confidential versions of the AMC's decisions on merger and concerted practice applications and cases, violation of competition cases, and the initiation of merger Phase II reviews. Short announcements of the AMC decisions.