Ukrainian competition agency: trends and developments to watch

On 31 May 2017, the III Ukrainian Antitrust Forum took place in Kyiv, gathering a wide range of speakers and participants, including top officials of the Antimonopoly Committee of Ukraine (the AMC), experts from the Organization for Economic Co-operation and Development (OECD), guests from foreign competition authorities and representatives of Ukrainian business. This event allows Ukraine’s business community to draw the AMC’s attention to the “hot” issues in competition law enforcement and compliance. Equally importantly, the AMC uses this platform to report on its achievements and to announce upcoming developments.

Based on presentations of the AMC’s senior officials, the following initiatives are being developed by the AMC:

• adjustment of financial thresholds for merger control by removing the seller from the calculation of turnover and assets, as recommended by the OECD in the most recent peer review;
• amendment of legislation to allow the AMC to deny merger clearance involving undertakings in the sanctions list;
• introduction of differentiated filing fees for merger review depending on the review procedure, i.e. fast track, regular or Phase II notifications;
• introduction of de minimis exemption that allows the AMC not to initiate an investigation if it discovers a violation that has negligible effect on competition;
• concentrating on the problematic markets (although, no specific markets were mentioned, we assume that the AMC will traditionally pay attention to socially important markets, such as pharmaceuticals, retail, oil&gas, etc.);
• increasing the use of economic analysis in the analysis of concerted practices and complicated mergers;
• strengthening the AMC’s investigation powers and introducing additional tools that would allow the regulator to investigate cartels more efficiently;
• increasing administrative liability for CEOs of undertakings to achieve a higher deterrent effect, e.g. for failure to respond to AMC's requests;
• addressing difficulties with enforcement of AMC’s decisions by allowing their direct enforcement (currently, the AMC has to use court proceedings in order to obtain an enforcement order) and imposing fines on the ultimate parent companies or UBOs for violations committed by a subsidiary;

Some of these initiatives will require a legislative amendment, while others can be implemented by the amendment of the AMC’s regulations. The timing of implementation of these initiatives is not certain, as the AMC appears to be overloaded and understaffed.

At the first session of the III Ukrainian Antitrust Forum, Vladimir Sayenko presented the areas for improvement of Ukrainian competition laws, concentrating on merger control issues and procedural rights of undertakings in the investigations conducted by the AMC.

We will closely monitor the initiatives announced by the AMC and will be happy to share further details when there are any important developments. For further information about the most recent developments in Ukrainian competition law and practice, please contact Vladimir Sayenko or Valentyna Hvozd.