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Your power to winLegal advice on antitrust issues
Competition (from the Latin "concurrere" – to collide, to compete) is an integral feature of a market economy, as the competitive struggle for the most favorable conditions for the production and sale of goods and services drives progress and is an economic law of the market system. At the same time, fair and honest competition requirements must be ensured among market participants, as fair market competition primarily involves offering high-quality goods or providing professional services at a lower cost than competitors or with additional benefits.
In Ukraine, the activities of both domestic and foreign companies must comply with the norms of competition legislation and the requirements of the Antimonopoly Committee of Ukraine (AMCU). Ukraine's antimonopoly legislation consists of a limited number of regulatory acts, which in practice can lead to different interpretations of the legality of market participants' behavior and the risk of liability. Non-compliance with Ukraine's antimonopoly laws entails severe penalties in the form of fines imposed by AMCU authorities, reaching up to 10% of revenue for the last reporting year.
Other factors that may negatively affect business operations include unfair actions by competitors and unfounded decisions by antimonopoly authorities.
Given the potential size of sanctions, it is particularly important to provide a proper legal assessment of the company's activities or planned changes to its operations. Obtaining timely professional legal advice on antimonopoly law will help identify potential issues in the company’s activities or planned actions and avoid measures that could result in fines in the future.
- Analytical Services:
- Analysis of the market position of a business entity
- Assessment of the market impact of the planned actions of a business entity
- Determination of a business entity's market share on a regional or national level
- Analysis of a business entity's monopolistic (dominant) position in the market
- Examination of business activities to identify a dominant position
- Review of client contracts to identify potential abuse of monopolistic (dominant) position.
- Advisory Services on Competition and Antitrust Law:
- Comprehensive legal analysis of past actions and planning of future actions of business entities to ensure compliance with competition and antitrust legislation
- Providing advice on the feasibility of specific actions by a business entity and the development of an overall strategy for its conduct within the framework of current competition and antitrust law
- Development of corrective measures to address deficiencies in transactions already conducted by business entities
- Analysis of commercial agreements and any coordinated competitive behavior of business entities for compliance with Ukraine’s competition and antitrust laws
- Legal analysis of the formation of business groups and structural changes in control relations between such entities
- Review of advertising campaigns by business entities to ensure compliance with competition and antitrust requirements
- Legal analysis of competitors’ actions
- Providing information on antitrust legislation and the principles of AMCU actions
- Compliance review of competition rules
- Structuring, analysis, and drafting of trade agreements (distribution, joint commercial activity, etc.)
- Issues related to coordinated activities in the market.
- Strategy Development:
- Development and/or optimization of strategies for business entities' interactions with the Antimonopoly Committee of Ukraine (AMCU)
- Development of strategies to eliminate and minimize risks associated with past or existing violations of competition and antitrust laws
- Development of strategies to minimize legal risks related to planned agreements by the business entity.
- Risk Analysis:
- Identification and analysis of potential risks in already implemented projects and planned actions of a business entity
- Formulation of strategic behavior schemes and management of such risks
- Review of agreements and contracts of a business entity for potential violations of competition and antitrust laws
- Analysis of letters, requests, and other documents received by a business entity from the AMCU
- Examination of the actions and behavior of the AMCU concerning a business entity.
- Legal Opinions:
- On the necessity of obtaining a merger clearance from the AMCU
- On the review and compliance of agreements with the Model Requirements for vertical concerted actions of business entities regarding the supply and use of goods
- On the legality and procedures for conducting or participating in tender processes, with the possibility of effective legal support for participants
- Analysis of AMCU inquiries to prepare appropriate responses
- On the legal prospects of appealing an AMCU decision unfavorable to a business entity
- On the legality of imposing liability in the form of fines.
The system for appealing decisions of the Antimonopoly Committee of Ukraine is structured so that the final determination in a dispute concerning the evaluation of a business entity’s actions ultimately rests with the court. Therefore, thorough monitoring of existing legal precedents and the correct application of relevant substantive law provisions are essential components of any legal opinion on antitrust matters.
A high-quality legal opinion will help assess the prospects of judicial protection in disputes with the AMCU, as antimonopoly authorities are required to consider court positions when identifying and proving violations of competition law.
Regardless of the decision made by the antimonopoly body after reviewing the case, it is advisable to review the case materials upon receiving a copy of the submission containing preliminary conclusions.
Antitrust legislation mandates actions within specific timeframes, which generally cannot be restored once expired. This is particularly crucial when appealing or reviewing a rendered decision.
According to Part 1 of Article 59 of the Law of Ukraine "On Protection of Economic Competition," the grounds for amending, canceling, or declaring the decisions of the Committee invalid include:
- Failure to fully ascertain circumstances that are significant for the case;
- Failure to prove circumstances that are significant for the case and are considered established;
- Discrepancy between the conclusions in the decision and the circumstances of the case;
- Violation or incorrect application of substantive or procedural law.
No. Competition law does not condition the application of liability provided for violations of this legislation on the presence of guilt in any form on the part of the business entity.
No. A violation by the Antimonopoly Committee of Ukraine of its legally defined competence in making decisions should result in the invalidation of such decisions by the commercial court.