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Restraints of trade and dominance in Ukraine: overview
Restraints of trade
Scope of rules
1. Are restrictive agreements and practices regulated? If so, what are the substantive provisions and regulatory authority?
Restrictive agreements and practices may qualify as anti-competitive concerted practices (that is, practices that resulted or may result in prevention, elimination or restriction of competition). There is a general prohibition of anti-competitive concerted practices, unless an exemption applies (see Question 3).
Anti-competitive concerted practices are subject to administrative sanctions under the Law of Ukraine on Protection of Economic Competition 2001 (Competition Law). In addition, third parties that sustained damage as a result of such violations may claim damages (see Question 14). There is no criminal liability for these violations.
In addition to the Competition Law, the regulatory framework includes the:
Concerted practices are defined as follows (Competition Law):Agreements in any form (including verbal arrangements and networks of agreements). Decisions of associations of undertakings. Any co-ordinated practices (actions or omissions) of the undertakings. Establishment of an undertaking or an association (or entry into an association) aiming at, or resulting in, the co-ordination of the competitive behaviour of the: undertakings that established a new undertaking or an association; or undertakings that established a new undertaking or an association, on the one hand, and the new undertaking, on the other.
Anti-competitive concerted practices most commonly include, among others (Competition Law):Fixing prices or other purchase or sale conditions. Limiting production, markets, technological development or investment, as well as assuming control of them. Dividing markets or sources of supply according to territory, type of goods, sale or purchase volumes, or classes of sellers, buyers or consumers. Distorting the results of trading, auctions, competitions or tenders. Ousting other companies from the market or limiting their market access. Applying different conditions to identical agreements to put a specific company at a disadvantage. Executing agreements that are conditional on the contracting party's acceptance of additional obligations unrelated to the subject of the agreement. Substantially limiting the competitiveness of other companies without justifiable reasons. Parallel behaviour (actions or omissions) that resulted or may result in the prevention, elimination or restriction of competition is also considered a violation, unless there are objective reasons for this behaviour.
The Antimonopoly Committee of Ukraine (AMC) is the primary authority entrusted with ensuring protection of competition. In particular, it has powers to investigate, as well as grant or refuse granting the authorisation for concerted practices. If the AMC refuses to approve the concerted practices, the Cabinet of Ministers of Ukraine (CMU) may overrule that decision (see Question 3, Individual exemption and Question 5, Relevant authority).
See box, The regulatory authority.
2. Do the regulations only apply to formal agreements or can they apply to informal practices?
The regulations apply to agreements and other concerted practices irrespective of their form. The following are covered:
Any agreements involving anti-competitive concerted practices are presumed to violate the law (for example, price-fixing or market sharing arrangements).
3. Are there any exemptions? If so, what are the criteria for individual exemption and any applicable block exemptions?
The Antimonopoly Committee (AMC) may authorise (grant an individual exemption to) certain potentially anti-competitive concerted practices if both (Competition Law):The parties can prove that these practices encourage manufacturing, technological or economic development, or other efficiencies. The practices do not lead to a substantial restriction of competition.
In exceptional circumstances the Cabinet of Ministers can allow concerted practices (unless the restriction of competition poses a threat to the market economy system) that have not been approved by the AMC if the parties can show that the positive effects of these practices for the public interest outweigh the negative consequences of the restriction of competition.
In addition to the possibility of obtaining an individual exemption from the AMC, the following block exemptions exist (General Exemption Regulation):De minimis exemption, applicable where the aggregate market share of the parties (including their respective corporate groups) in any of the product markets concerned is less than 5%. Market share-based exemption, applicable to vertical or conglomerate arrangements where the parties' combined market share is below 20%, and to horizontal and mixed arrangements where the parties' combined market share is below 15%. However, market share-based exemption cannot apply if (cumulative conditions): the aggregate worldwide turnover or assets value of the parties (including their respective groups) exceeded EUR12 million in the preceding financial year; the aggregate worldwide turnover or assets value of at least two undertakings that belongs to the parties' groups separately exceeded EUR1 million in the preceding financial year; and the aggregate turnover or assets value in Ukraine of at least one undertaking that belongs to either party's group exceeded EUR1 million in the preceding financial year.
However, it appears that in the AMC's practice the value of assets/turnover test does not serve as an appropriate benchmark to assess potential competition concerns. This is because the effects of vertical restraints on competition primarily depend on the market position of the parties (for example, their market shares).
If the parties are at least potential competitors, the general exemptions do not apply to horizontal or mixed hard-core restrictions, including:
Specialisation exemption. The Specialisation Regulation provides a block exemption for horizontal arrangements contemplating concentration of the undertakings' efforts and resources in the production (distribution) of certain products that result in the improvement (rationalisation) of production, acquisition or distribution of the products, unless one of the following applies:Either of the undertakings holds a dominant position (or is a monopoly). Their combined market share on any of the markets concerned exceeds 25%. The specialisation arrangement results in output limitation, market sharing or similar, or its term exceeds five years.
In particular, the following actions are permissible:Discontinuing production of identical or similar products. An agreement to produce/sell agreed products only jointly. Refraining from supplying/acquiring the agreed products to/from competing undertakings. Keeping minimum stock of the agreed products.
R&D exemption. In late 2012, the AMC enacted a regulation exempting joint R&D and/or development and engineering works from the requirement to obtain prior AMC clearance. The exemption applies when the combined market share on the parties on the relevant market does not exceed 25% and the parties meet a set of other criteria (for example, equal access to the results of the R&D activity).
Exemption for associations. The Associations Regulation exempts the establishment of business associations from prior AMC clearance if certain conditions are met (for example, participants receive no profit from the association's activities, limitation of co-ordination to organisational, educational, informational aspects, no interference with business activities of participants, no limitations on entry and exit).
In 2012, the AMC amended the Associations Regulation expanding the list of allowed financing sources and improving the permitted information collection and exchange procedures among the participants of an association.
Exclusions and statutes of limitation
4. Are there any exclusions? Are there statutes of limitation associated with restrictive agreements and practices?
The prohibition of anti-competitive concerted practices does not apply to the (Competition Law):Concerted practices of small or medium-sized undertakings concerning the joint acquisition of products. Concerted practices in relation to the supply and use of products that limit: use of products supplied by the imposing undertaking or use of products of other suppliers; purchase of other products from other suppliers or sale of such other products to other undertakings or consumers; purchase of products that, due to their nature or trade custom and other fair business practices, are not related to the subject matter of the relevant agreement (tying); or price formation or establishment of other contractual terms and conditions for selling the products supplied by the imposing undertaking to other undertakings or consumers.
However, this exception does not apply if the restrictions:Result in substantial restriction of competition on the market. Limit other undertakings' access to the market. Result in economically unjustified price increases or product shortages. Agreements concerning the transfer of intellectual property rights (IPRs) if these agreements contain certain allowed limitations on the economic activities of the transferee, particularly on the: scope of transferred rights; period and territory of permitted use of the IP; type of activity, application, and the minimal production volume.
For the de minimis exemption, see Question 3, General Exemptions.
Statutes of limitation
The statute of limitation in relation to restrictive agreements and practices is five years as of the moment when the infringement was terminated. The statute of limitation is suspended for the duration of the Antimonopoly Committee's investigation of the alleged infringement.
5. What are the notification requirements for restrictive agreements and practices?
Implementation of an anti-competitive concerted practice that is not covered by a block exemption or other exclusion is prohibited, unless the transaction is individually cleared by the Antimonopoly Committee (AMC) before the implementation.
The parties to a transaction can refer to the AMC for formal guidance on whether a concerted practice requires an individual AMC clearance or whether the clearance is likely to be granted or refused. Informal discussions with the AMC's officers are also possible, although the law does not expressly provide for it.
Responsibility for notification
The parties are jointly responsible for notifying.
The AMC is the relevant authority. However, the Cabinet of Ministers may approve a concerted practice even if the AMC has refused clearance (see Question 3, Individual exemption).
Form of notification
The parties to a concerted practice must submit a written notification with the contents and annexes as set out in the Concerted Practices Regulation. There is no prescribed form of notification. Some information must also be submitted in electronic form.
The filing fee is UAH2,550.
6. Who can start an investigation into a restrictive agreement or practice?
The Antimonopoly Committee (AMC) can launch an investigation:On its own initiative based on the available information, market monitoring/research and so on. If requested by other businesses or individuals. If requested by governmental or local authorities.
Third parties can file a complaint with the AMC if they believe that certain arrangements/practices on the market may be anti-competitive and negatively impact their rights and interests. In particular, the following third parties can file a complaint:Competitors. Customers. Suppliers. Other legal entities or individuals that can substantiate/prove direct negative impact.
If not rejected on formal grounds, the complaint will be reviewed by the AMC within 30 calendar days (extendable by 60 calendar days if additional information is required). Following the review of a complaint the AMC can start an investigation based on the third party complaint (formal complainant) or on its own initiative if third party complainant (informal complainant) requests confidentiality due to possible negative consequences for it.
7. What rights (if any) does a complainant or other third party have to make representations, access documents or be heard during the course of an investigation?
A complainant and third parties can be involved in the investigation as third parties if their rights and interests may be significantly affected by the Antimonopoly Committee (AMC) decision. The decision on their involvement is up to the discretion of the AMC. The law does not distinct between different classes of third parties (formal or informal complainant, other third party) with respect to the rights they have.
Third parties can submit their written and oral observations, and provide evidence.
Third parties can access case materials, except for confidential information and any other information the disclosure of which may violate the interests of other parties involved in the investigation. In addition, third parties can obtain copies of the AMC decision in relation to the case.
Third parties can submit their observations relating to, among other things, the restrictive agreement/practice and its impact on the market. The AMC must take these observations into account when deciding on the case.
8. What are the stages of the investigation and timetable?
There are no clear legislative guidelines for the investigation and the Antimonopoly Committee (AMC) is vested with a significant degree of discretion in this regard. Particularly, there is no fixed period within which an investigation must be accomplished, and the AMC can repeatedly request documents and information, and reconsider the evidence collected.
The entire investigation can be usually divided into three main stages:
During the investigation the AMC may issue recommendations aimed at prevention/rectification of the alleged offence and close the case without finding the parties in violation of the law.
In practice, investigations by the AMC usually last more than six months.
Publicity and confidentiality
9. How much information is made publicly available concerning investigations into potentially restrictive agreements or practices? Is any information made automatically confidential and is confidentiality available on request?
Information concerning investigations (apart for the parties' confidential information (see below, Confidentiality on request)) can be made public, although the Antimonopoly Committee (AMC) is not statutorily required to do so. The disclosure can be made at either stage of the investigation, including before the proceeding is formally opened. Also under the Law on Access to Public Information enacted in 2011, the AMC must now disclose its decisions (except for the parties' confidential information). To date, this provision has been implemented by the AMC by publishing short announcements regarding its decisions (including certain information regarding the parties, type and contents of the notified concerted practice) and major investigations.
Automatic confidentiality does not apply to any information.
Confidentiality on request
Confidentiality may be available to the parties of an investigation on request (unless the AMC questions treatment of the information as confidential and the parties fail to duly substantiate why it should be so treated).
10. What are the powers (if any) that the relevant regulator has to investigate potentially restrictive agreements or practices?
When investigating potentially restrictive agreements or practices, the Antimonopoly Committee (AMC) can:
11. Can the parties reach settlements with regulators to bring an early resolution to an investigation? If so, what are the circumstances for doing so and the applicable procedure?
Ukrainian competition laws do not provide for an official procedure to reach settlements in an investigation. However, fines may be reduced through co-operation and negotiation with the Antimonopoly Committee (AMC) (for example, by agreeing to fully co-operate and to take actions mitigating adverse effects of an infringement).
12. Can the regulator accept remedies (commitments) from the parties to address competition concerns without reaching an infringement decision? If so, what are the circumstances for doing so and the applicable procedure?
During the investigation the Antimonopoly Committee (AMC) may issue recommendations aimed at prevention/rectification for the alleged offence identifying remedies and close the case without finding the parties to be in violation of the law. Remedies and the relevant procedures are not comprehensively regulated by Ukrainian laws and are usually negotiated with the AMC on a case-by-case basis.
Penalties and enforcement
13. What are the regulator's enforcement powers in relation to a prohibited restrictive agreement or practice?
For prohibited restrictive (anti-competitive) agreements or practices the Antimonopoly Committee (AMC) can, in particular:Issue an individual clearance decision on the parties' application for approval of the agreement/practice. The decision can be conditional or unconditional, and limited or unlimited in time. Prohibit a notified or investigated agreement/practice and impose sanctions (fines). Issue an order to bring an infringement to an end. Issue an order to eliminate the consequences of an infringement. Repeal its earlier clearance decision if the parties to the agreement/practice impose on certain undertakings restrictions that generally are not imposed on other undertakings, or apply unequal terms.
Once the violation is established, the parties to a prohibited agreement/practice can be fined up to 10% of their worldwide turnover on a group level in the year immediately preceding the year when the fine is imposed.
In addition to the financial penalties, the parties may face any or all of the following:
There is no personal criminal or administrative liability, except that a state official may incur a nominal administrative fine if he fails to provide information to the AMC as required by law. The law also envisages personal administrative liability of company's officers interfering with AMC's investigations. However, an efficient mechanism for implementation of this has not been created to date.
The Competition Law provides for a possibility to apply for full immunity and there is a leniency procedure set out in the Leniency Regulation adopted by the AMC in late 2012. The applicant must meet the following cumulative criteria to benefit from full immunity:Be the first party to voluntarily inform the AMC of the violation before the AMC issues a statement of objection in the relevant investigation case (initiators of anti-competitive practices cannot apply for immunity). Provide the AMC with information of essential importance for making the decision on the case. Provide all available evidence and/or information concerning the violation. Take effective measures to cease its participation in the anti-competitive practices.
The Leniency Regulation further details the requirements to leniency applicants, types of information and evidence an undertaking should provide for its application to be successful, filing mechanics and review procedure, among others.
Impact on agreements
Anti-competitive agreements are not void per se; rather they can be invalidated by the court on the AMC's initiative. The AMC may also issue an order requesting the parties to discontinue a violation, which will effectively prohibit the parties from implementing an anti-competitive agreement.
Third party damages claims and appeals
14. Can third parties claim damages for losses suffered as a result of a prohibited restrictive agreement or practice? If so, what special procedures or rules (if any) apply? Are collective/class actions possible?
Third party damages
The parties to a restrictive agreement or practice may be exposed to damages claims by third parties. The amount of compensation is twice the amount of the actual damage sustained.
Third parties that sustained damage as a result of an anti-competitive practice can seek to recover the damages suffered in court (legal entities in commercial court and individuals in civil courts). The statute of limitation period is three years after a third party became aware of the damages. Ukrainian laws do not generally link the possibility to bring a claim with the Antimonopoly Committee (AMC) infringement decision. The AMC has exclusive power to investigate the restrictive agreements/practices and determine whether a particular arrangement has any negative impact competition in Ukraine (that is, anti-competitive). In practice, the prior infringement decision of the AMC is very helpful for judicial review.
Class actions are theoretically available. However, the procedural framework is underdeveloped, which makes class actions inefficient.
15. Is there a right of appeal against any decision of the regulator? If so, which decisions, to which body and within which time limits? Are rights of appeal available to third parties, or only to the parties to the agreement or practice?
Rights of appeal
Any Antimonopoly Committee (AMC) decision can be appealed by the parties or third parties within two months following the receipt of the decision.
It remains uncertain whether administrative or commercial courts have jurisdiction over appeals. As a matter of practice, commercial courts usually assume jurisdiction and render a final judgment.
The applicable Ukrainian procedural codes regulating commercial/administrative court proceedings establish a two-month term for consideration of cases in each first instance and appeal instance and a one-month term for review on cassation, as well as review of the case by the Supreme Court of Ukraine (to which the cassation court's award may be appealed). From a practical perspective, these terms are rarely met due to courts' heavy workload, necessity of conducting additional investigations, collection of documents and information and so on. Therefore, the review on appeal may last for up to several years. Expedited review is not available.
Generally, the court can suspend the AMC decision until the final judgment is rendered. However, to protect the public interest or prevent the possible negative impact of the violation(s), the AMC can declare that the decision cannot be suspended.
Third party rights of appeal
Third parties can appeal an AMC decision (see above, Rights of appeal and procedure).
Scope of rules
16. Are monopolies and abuses of market power regulated under administrative and/or criminal law? If so, what are the substantive provisions and regulatory authority?
Monopolies and abuses of market power are regulated under competition law, which is administrative in nature. The principal law governing these issues is the Competition Law.
The Antimonopoly Committee is the state authority primarily responsible for prevention and investigation of the infringements involving companies holding a dominant position.
17. How is dominance/market power determined?
An undertaking holds a dominant position on the market if it (Competition Law):
An undertaking is presumed to enjoy a dominant market position if it holds a market share in excess of 35%, unless it can prove significant competition on the part of the other market players (a rebuttable presumption). An undertaking with a smaller market share may also be considered dominant if there is no significant competition due to the comparatively small market shares of its competitors. (See Question 28 for proposed changes.)
Several undertakings may also be deemed to collectively enjoy a dominant position on the market (collective dominance) if either:
A detailed procedure of determination of the product and geographical definition of the market, as well as calculation of the relevant market shares, is set out in the Monopoly Methodology.
18. Are there any broad categories of behaviour that may constitute abusive conduct?
The following practices are regarded as abuses of a dominant market position:
The list is not exhaustive; it simply shows the Antimonopoly Committee's approach to the determination of the abuses of a dominant market position.
Exemptions and exclusions
19. Are there any exemptions or exclusions?
There are no exclusions or exemptions.
20. Is it necessary (or, if not necessary, possible/advisable) to notify the conduct to obtain clearance or (formal or informal) guidance from the regulator? If so, what is the applicable procedure?
As abuses of dominant position are anti-competitive and automatically prohibited, there is no notification requirement in relation to such conduct. It is, however, possible to obtain guidance from the Antimonopoly Committee (in the form of a non-binding recommendation) as to whether certain actions or omissions may qualify as abuse of dominance.
21. What (if any) procedural differences are there between investigations into monopolies and abuses of market power and investigations into restrictive agreements and practices?
There is no appreciable difference and the procedure is the same as for restrictive agreements and practices (see Questions 6 to 9 and Questions 11 and 12).
22. What are the regulator's powers of investigation?
The regulator's powers of investigation are the same as for restrictive agreements and practices (see Question 10).
Penalties and enforcement
23. What are the penalties for abuse of market power and what orders can the regulator make?
In relation to fines, see Question 13, Fines.
Once the violation is established, the Antimonopoly Committee can also request a mandatory division of a dominant undertaking unless:
Third party damages claims
24. Can third parties claim damages for losses suffered as a result of abuse of market power? If so, what special procedures or rules (if any) apply? Are collective/class actions possible?
This is the same as in relation to prohibited restrictive agreements or practices (see Question 14).
Class actions are theoretically available. However, the procedural framework is underdeveloped, which makes class actions inefficient.
25. Are there any differences between the powers of the national regulatory authority(ies) and courts in relation to cases dealt with under Article 101 and/or Article 102 of the TFEU, and those dealt with only under national law?
26. How are joint ventures analysed under competition law?
There is no formal legal definition of a joint venture. Under the Competition Law a joint venture may be considered a concentration or concerted practice, in which case the relevant general rules apply.
A joint venture is considered a concentration (and may require the merger clearance) if it meets the following criteria:
A joint venture is considered a concerted practice if it is established with an objective of, or results in, co-ordination of competitive behaviour of its parents or the joint venture, on one hand, and its parents, on the other. Establishment of such joint venture is prohibited per se if it results or may result in prevention, elimination or restriction of competition, though the parties may apply for the Antimonopoly Committee authorisation (see Question 3, Individual exemption).
27. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities in other jurisdictions in relation to infringements of competition law? If so, what is the legal basis for and extent of co-operation (in particular, in relation to the exchange of information)?
The Antimonopoly Committee (AMC) most actively co-operates with the Commonwealth of Independent States (CIS) competition authorities within the Interstate Council for Antimonopoly Policy. The Council functions as a forum for information exchange and co-ordinates reform in the area.
The AMC also co-operates with other competition authorities based on bilateral (for example, with Bulgaria, Hungary and Latvia) and multilateral treaties, as well as with the international organisations (for example, Organisation for Economic Co-operation and Development (OECD), United Nations Conference on Trade and Development (UNCTAD) and the International Competition Network (ICN)).
28. What are the recent developments or notable recent cases concerning abuse of market power?
Notable recent cases on abuse of market power mostly concerned the excessive pricing and creation of barriers to entry by dominant undertakings:
Proposals for reform
29. Are there any proposals for reform concerning restrictive agreements and market dominance?
The main proposals for reform concerning restrictive agreements and market dominance concern the following:
The law will enter into force in full on 2 August 2017. However, certain provisions are already effective, in particular, the provisions empowering the Cabinet of Ministers of Ukraine to establish the criteria for assessment of certain categories of state aid and the AMC to develop the relevant state aid regulations.