Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Article 5 of the Competition Act defines concerted actions as:
- the conclusion of agreements by economic entities; 
- the decision-making by associations in any form; 
- any other agreed competitive behavior of economic entities; 
- the creation of a business entity or association whose purpose or consequence is the coordination of behaviors between its founders.

Pursuant to Article 6§4 of the s …

The prohibition

Article 5 of the Competition Act defines concerted actions as:

- the conclusion of agreements by economic entities; 

- the decision-making by associations in any form; 

- any other agreed competitive behavior of economic entities; 

- the creation of a business entity or association whose purpose or consequence is the coordination of behaviors between its founders.

Pursuant to Article 6§4 of the same Act, concerted actions that are anti-competitive are prohibited. Article 6§1 defines anti-competitive concerted actions that have led or may lead to the prevention, elimination of limitation of competition. Those include in particular concerted actions that relate to: 

- fixing prices or other conditions for the purchase or sale of goods;

- limiting production, product markets, technical and technological development, investments or establishing control over them;

- the distribution of markets or sources of supply according to the territorial principle, the range of goods, the volume of their sale or purchase, according to the circle of sellers, buyers or consumers or according to other characteristics;

- distortion of the results of trades, auctions, contests, tenders;

- removal from the market or restriction of access to the market (exit from the market) of other business entities, buyers, sellers;

- application of different conditions to equivalent agreements with other business entities, which puts the latter in a competitive disadvantage;

- conclusion of agreements on the condition that other business entities accept additional obligations, which by their content or in accordance with trade and other fair customs in business activity do not relate to the subject of these agreements;

- significantly limiting the competitiveness of other business entities on the market without objectively justified reasons (Article 6§2).

In addition, similar conduct by action or inaction which have led or may lead to the same result is also considered anti-competitive if it can be justified by objective reasons based on a analysis of the situation in the given product market (Article 6§3).

Article 7 of the Competition Act exempts concerted actions by small and medium-sized companies regarding the joint purchase of googs provided they do not significantly restrict competition and contribute to increasing the competitiveness of such companies. 

Pursuant to Article 10 of the same act, the Antimonopoly Committee of Ukraine (AMCU) can authorize some concerted actions when the parties demonstrate that such conduct contributes to: 

- improvement of production, purchase or sale of goods;

- technical and technological, economic development;

- development of small or medium-sized entrepreneurs;

- optimization of export or import of goods;

- development and application of unified technical conditions or standards for goods;

and provided that they do not significantly limit competition on the given market. 

Pending the AMCU review, the conduct must not be implemented. The different stages of the procedure (preview period, Phase 1 and Phase 2) are the same as in merger control. Further guidance on the procedure for the assesment of such application is set out in the AMCU's Regulation on the Procedure for Submission of application to the AMCU for Approval for Concerted Actions approved by Order No. 26-p dated 12 February 2002.

Failing the approbation of the AMCU, parties can still request the Cabinet of Ministers of Ukraine to clear their conduct upon showing that the positive effect for public interests outweighs the negative consequences of limiting competition (Article 10§3). 

Another type of exemptions relies on the mechanism of standard requirements. Article 11 entrusts the AMCU with the power to establish standards requirements for certain types of concerted actions so as to allow them without the need to get individual review before the AMCU. To that end, the AMCU notably adopted in 2019 Typical Requirements for the Coordinated Actions of the Entities for General Exemption from the Prior Obtaining the Authorization of the Bodies of the Antimonopoly Committee of Ukraine for the Coordinated Actions of the Entities in the view of harmonizing with EU conditions for block exemptions. Restrictions of competition contained in vertical agreements between parties each holding less than 30% of market share fall under a safe harbor except if they constitute hardcore restrictions such as resale price maintenance or restrictions of territory or type of customers.

Global Competition Law

1358. The prohibition

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Les notions juridiques connexes

1358. The prohibition

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Les notions juridiques connexes

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