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Economic Competition Cases: which Court is more Competent? There is no Wrong Answer yet
A lawsuit should be filed...
In the practice of antitrust law, it is not uncommon for an undertaking to disagree with the position of the Antimonopoly Committee of Ukraine (AMCU) regarding such an undertaking's alleged wrongful conduct. If such purported wrongful conduct is grounds for fines or other forms of liability, the undertaking must seek a vindicating decision from a higher authority, i.e. a court. That is precisely the moment when a most interesting question arises for legal counsel and his or her client: in which jurisdiction should the lawsuit be filed — an administrative court or an economic court?
Logically, the lawsuit should be filed with the court that is competent to adjudicate the relevant legal relations. Back in the 1990s, it was merely a topic of discussion among Ukrainian legal scholars about the nature of legal relations in economic competition involving the AMCU and undertakings (Bila L.R. Administrative Liability for Infringements of the Antimonopoly Legislation: Synopsis of the thesis for conferring the degree of candidate of legal sciences: 12.00.07 / Odessa, 1995. -p. 24; Mamutov V.K. Codification of Economic Legislation in the New Economic Conditions // Issues of Formation of Economic Legislation of Ukraine. - Donetsk. - 1994. - p. 179).
However, disputes over whether or not such legal relations were administrative or economic, as well as discussion of their complex nature, were rather academic. As a branch of specialized courts of Ukraine, the system of economic courts was competent to administer those judicial proceedings. Quite recently, legal certainty has begun to evaporate because the academic dispute found its way into legal practice due to the establishment of local and appellate administrative courts (according to the Decree of the President of Ukraine on Establishment of Local and Appellate Administrative Courts, Approval of their System and Number of Judges of 16 November 2004, No.1417/2004). For the reader's convenience, we shall cite the provisions of the relevant laws, and thereafter raise the arguments of economic and administrative courts as to their competence. Insofar as this is an ongoing dispute, it would be inappropriate to draw any definite conclusion at the present time...
...as prescribed by law...
The laws of Ukraine do not provide uniformity regarding this issue. Some laws are rightly silent on the issue of competence, while other laws explicitly state the powers of the economic courts in economic competition cases. Still other laws assign administrative cases to the jurisdiction of administrative courts, presuming that such disputes between undertakings and the AMCU are of an administrative nature.
Economic Code of Ukraine of 16 January 2003, No. 436-IV
Article 40 paragraph 7: "The decisions of the Antimonopoly Committee of Ukraine and its territorial branches can be appealed in court".
Economic Procedural Code of Ukraine of 6 November 1991, No. 1798-XII
Article 12 item 3: "Cases in the jurisdiction of economic courts are: [...] cases instituted on applications of the bodies of the Antimonopoly Committee of Ukraine [...] regarding issues attributed to their competence by legal acts".
Protection of Economic Competition Act of Ukraine of 11 January 2001, No. 2210-III
Article 60 paragraph 1: "The applicant, the defendant, the third party are empowered to appeal against decisions of bodies of the Antimonopoly Committee of Ukraine in part or in whole to an economic court within a period of two months from the receipt of the decision. This term cannot be resumed".
The Code of Administrative Procedure of Ukraine of 6 July 2005, No. 2747-IV
Article 2 paragraph 2: "Any decisions, actions or inactions on the part of subjects of administrative powers may be appealed to administrative courts, except for situations, when the Constitution of Ukraine or the laws of Ukraine provide for another regime of judicial proceedings regarding such decisions, actions or inactions".
Article 4 paragraph 2: "The jurisdiction of administrative courts extends to all public disputes, except for disputes that are adjudicated under another regime of judicial proceedings in accordance with the law".
Article 17 paragraph 1, item 1: "The competence of administrative courts extends to: 1) disputes of individuals or legal entities with the subject of administrative powers regarding appeal against its decisions (normative or individual), actions or inactions".
Before the establishment of the second branch of specialized courts (i.e., administrative courts), economic courts alone, as the first branch of specialized courts, interpreted the aforementioned legal acts. However, administrative courts have entered the scene, thereby giving rise to conflicts in interpretation.
...with economic courts...
Although the aforementioned Presidential Decree was promulgated at the end of 2004, this administrative court system did not immediately come into being at the end of 2004 due to various reasons of an organizational character. At the same time, economic courts continued to administer justice in economic competition cases and accumulated relevant experience that was concentrated in the acts of the High Economic Court of Ukraine.
In its letters and recommendations, the High Economic Court of Ukraine has repeatedly emphasized the role of economic courts in economic competition cases. In the Survey Letter of 24 October 2006, No.01-8/2361, the High Economic Court of Ukraine briefly expressed its attitude toward the issue in the context of adjudication on the matter of the proper defendant in the system of the AMCU's territorial bodies. The line of argument was as follows: article 2 paragraph 2 of the Code of Administrative Procedure of Ukraine declares the right to appeal against any decisions, actions or inactions on the part of subjects of administrative powers to administrative courts. However, the same paragraph allows for flexibility when the Constitution of Ukraine or the laws of Ukraine provide for another regime of judicial proceedings regarding such decisions, actions or inactions. Such flexibility is also possible under article 4 paragraph 2 of the same code. The Protection of Economic Competition Act of Ukraine (Article 60) establishes another regime of judicial proceedings and explicitly grants to economic courts the power to adjudicate cases involving appeals against the decisions of the AMCU.
In the later Information Letter of 13 April 2007, No. 01-8/229, the High Economic Court of Ukraine dealt with the issue in a more extensive way. First, the line of argument of the previous letter was repeated. Second, it was emphasized that disputes involving the AMCU bodies should be adjudicated under the rules of the Economic Procedural Code of Ukraine. Third, the economic courts of Ukraine should adjudicate not only cases involving the AMCU bodies as defendants, but also cases involving the AMCU bodies as plaintiffs (Article 12 item 3 of the Economic Procedural Code of Ukraine). Those cases relate to the collection of fines and penalties from undertakings by the AMCU bodies.
The Recommendations of the Presidium of the High Economic Court of Ukraine of 27 June 2007, No.04-5/120 and the Survey Letter of 21 August 2007, No. 01-8/741 reiterated the extended line of argument in the same wording. It is highly probable that this will remain unchanged in future letters and recommendations.
There is an additional reason to extend the competence of the economic courts to cases involving the AMCU bodies. For more than a decade, the economic courts of Ukraine have gained considerable experience in adjudicating economic competition cases.
Administrative courts are not obliged to abide by that experience if they are granted competence. Therefore, the practice of the administrative courts may differ from that of the economic courts, and this does not bode well for legal certainty.
...or with administrative courts...
The initial attitude of the High Administrative Court of Ukraine was similar to the attitude of the High Economic Court of Ukraine, and the aforementioned line of argument was widely accepted. Later, that attitude was changed under the influence of the Supreme Court's Chamber in Administrative Cases, which adopted the opposite position. Consequently, in its recent Letter of 27 January 2009, No. 105/13/13-09, the High Administrative Court of Ukraine referred to the relevant decisions of the Supreme Court's Chamber in Administrative Cases that were adopted in individual cases.
Both decisions were adopted in the context of reconsideration of the Resolutions of the High Administrative Court of Ukraine. The first Decision of 16 September 2008, No. 08/174 included the following line of argument: disputes of a public nature involving subjects of administrative powers are considered to be cases of administrative jurisdiction. The Protection of Economic Competition Act includes both special norms on the protection of economic competition and general norms on judicial protection of rights infringed by the AMCU. Consequently, Article 60 cannot be the legal basis for determining competence to adjudicate public disputes involving the AMCU bodies. Preference should be given to the special norms of the Code of Administrative Procedure of Ukraine. Thus, the administrative courts of Ukraine are competent to administer proceedings regarding public disputes of individuals or legal entities and the AMCU bodies (as subjects of administrative powers), when appeals are brought against decisions, actions or inactions. The second Decision of 7 October 2008, No. 08/204 included almost the same wording.
The difference between the approaches is rooted in the understanding as to which norms are special and which are general: those of the Protection of the Economic Competition Act or those of the Code of Administrative Procedure of Ukraine. At the same time, the Decisions of the Supreme Court's Chamber in Administrative Cases demonstrate that the branch of specialized administrative courts does not claim to adjudicate cases where the AMCU bodies appear as plaintiffs.
There are additional reasons to extend the competence of the administrative courts to cases involving the AMCU bodies as defendants: 1) there must be a uniform system for appeal against decisions, actions or inactions of subjects of administrative powers; any exceptions to the rule will undermine the system; 2) the Protection of Economic Competition Act of Ukraine was adopted before the reform that introduced administrative courts. Thus, the rule providing for appeal to the economic courts was contemporary and reflected the system of judicature in its former state. In order to solve the controversy, the act should be restated, and the competence of the administrative courts should be explicitly prescribed.
...therefore (instead of a conclusion)...
Presently, the courts of each jurisdiction, both administrative and economic, are empowered to institute judicial proceedings when an appeal against the decisions, actions or inactions of the AMCU's bodies is filed. Each local court will use the relevant letters of the high courts as guidance. Legal certainty may be achieved in the future by means of the Decision of the Plenum of the Supreme Court of Ukraine. The Decisions of the Supreme Court's Chamber in Administrative Cases, which reflect only the attitude of administrative courts toward the issue, are not sufficient to "dot the i's and cross the t's". On the other hand, the Supreme Court's Chamber in Economic Cases may also adopt decisions in individual situations and assign economic competition cases to the branch of economic courts of Ukraine. However, as long as the interpretations of the law provide us with such legal uncertainty, legal counsel in each particular case should solve the issue of filing a lawsuit with a court of either administrative or economic jurisdiction.