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

In October 2012 Ukraine's first Leniency Regulation, adopted by the AMCu on 25 June 2012, came into effect. It supplemented the rule introduced in 2001 in Article 6§5 of the Competition Act, under which any person who voluntarily informs the AMCU of an illegal agreement or a coordinated practice it has been a party to may gain full immunity against administrative liability if all of the following  …

Leniency

Under Article 48 of the Law on protection of competition, the AMCU can order the termination of a violation of such legislation and the elimination of the consequences of such violations, requiring in particular elimination or mitigation or the negative impact of concerted actions. 

Moreover, Article 53 allows the AMCU to order the forced division of a dominant undertaking. 

Cease and desist orders

According to Article 52 of the Law on protection of competition, undertakings or natural persons found liable for anticompetitive concerted actions, abuse of a monopoly or dominant position, or non-compliance with previous decisions of the AMCU are exposed to a fine up to 10% of their turnover as registered in the preceding year. However, if the profits obtained from the violation exceeds 10% of said turnover, a penalty up to three times that profit is incurred.The AMCU has updated in 2016 its Recommandation Clarifications regulating the order of fines. 

Fines

In October 2012 Ukraine's first Leniency Regulation, adopted by the AMCu on 25 June 2012, came into effect. It supplemented the rule introduced in 2001 in Article 6§5 of the Competition Act, under which any person who voluntarily informs the AMCU of an illegal agreement or a coordinated practice it has been a party to may gain full immunity against administrative liability if all of the following conditions are met:

- the applicant is the first to voluntary inform the AMCU of the violation;

- the information and evidence provided enable the AMC to prove the offense;

- the applicant must provide all available evidence and information concerning the violation;

- the applicant must take effective measures to cease its participation in the anticompetitive practices.

The Regulation clearly specified that only the first voluntary applicant for a marker would benefit from full immunity, except if it was the instigator of the cartel. The applicant could exceptionally continue to participate in the cartel in order to obtain additional evidence (Article 1.4) and apply for immunity even after the AMC had initiated an investigation but in any case before the AMC submitted its preliminary findings. A marker system had also been introduced and an authorized person was specifically in charge of handling leniency applications within the AMC. Articles 2.4 to 2.7 detail the information which should be included in the application. Oddly, the Regulation provided no possibility of fine reduction.

Those rules have been partially amended by the February 2019 Act, which now provides for a fine reduction for the persons who come forward after the first applicant. Accordingly, the second applicant may be granted a 50% fine reduction, the third a 30% fine reduction and the following applicants a 20% fine reduction. At the same time, the new rules also award full immunity to more than one undertaking when they report the existence of the infringement before the AMC has issued its preliminary findings.

There is currently no criminal liability for anticompetitive concerted actions following a criminal law reform of 2011. Therefore, individuals responsible for implementing a cartel are not personally held liable other than in the conditions decided by the AMCU. Still, agents from public bodies are exposed to administrative liability under the Code of Administrative Offences. 

It is to be noted that criminal liability for individuals is a debated topic and legislative reform on the matter is to be expected. 

Criminal sanctions

Law No. 3295-IX of 9 August 2023 on Amendments to Certain Legislative Acts of Ukraine to Improve the Activities of the Antimonopoly Committee of Ukraine introduced a settlement procedure for abuse of dominance and anticompetitive concerted practices cases, except for bid rigging.

In this event, Article 46-1 of the Law on the Protection of Economic Competition provides that in exchange for the recognition by the defendant of the fact of committing a violation, a 15% reduction of the fine will be granted.

Global Competition Law

1369. Leniency

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Les notions juridiques connexes

1369. Leniency

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Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise