According to the legislation, the Antimonopoly Committee of Ukraine has the authority to require individuals and legal entities to provide information – data in any form and format, preserved on any medium (correspondence, books, notes, illustrations, maps, diagrams, organizational charts, drawings, schemes, photographs, holograms, films, videos, microfilms, sound recordings, databases of computer systems, or full or partial reproduction of their elements), explanations from individuals, and any other publicly disclosed or documented information.
As a general rule, AMCU requests can be made during the consideration of applications and cases regarding violations of the competition law, conducting inspections, etc. However, the AMCU may also send requests to a wide range of individuals regarding not only potential violations but also as part of research on certain market segments or the competitive environment.
At the same time, failure to submit information, submitting incomplete information, or providing false information to the Antimonopoly Committee of Ukraine or its territorial branch within the established deadlines may result in a fine of up to one percent of the income (revenue) of the business entity from the sale of products (goods, works, services) for the last reporting year preceding the year in which the fine is imposed.
Our practice shows that when responding to requests from the Antimonopoly Committee of Ukraine (AMCU), there are at least two points that require special attention:
- The Law “On the Antimonopoly Committee of Ukraine” does not establish an exhaustive list of issues for which the AMCU may send relevant requests. Moreover, the AMCU is allowed to request any amount of information, including details containing banking and commercial secrets, as well as restricted-access information, the legality of which has been repeatedly confirmed by the Supreme Court. As a result, the volume of requested information is usually very large. For example, we recently submitted a package of documents consisting of 49 volumes in response to 33 questions in a single request. Therefore, one must be extremely cautious in submitting all necessary documents to avoid penalties.
- Legislation does not establish specific timeframes for responding to such antimonopoly requests. As such, these timeframes are set individually by AMCU staff when preparing the requirements. Often, the timeframes given are objectively too short to prepare a thorough response and properly certify copies of documents. We recommend always submitting a request to extend these deadlines, but one should keep in mind that the mere submission of such a request does not stop the timeframe, and there is always a possibility that the request will not be granted, requiring compliance with the original deadlines specified in the request.
It is also important to determine how to properly provide the required information without harming yourself or your counterparties. This requires conducting certain legal work and assessing potential risks.
Therefore, we recommend that upon receiving a request and requirement from the Antimonopoly Committee of Ukraine, you act promptly and seek professional assistance from our law firm to assess the legality of the request, determine the timeframe for providing a response, the possibility and advisability of extending the deadline, the specific scope and content of the requested information, as well as the procedure and method of its submission.
Our company is ready to offer services in preparing responses to the requirements and requests from the Antimonopoly Committee of Ukraine, and in cases with ongoing proceedings, to help minimize the risks of penalty sanctions.
WinnerLex Law Firm provides the following services regarding the preparation of responses to requests from the Antimonopoly Committee (AMC):
- Legal analysis of the AMC’s request to determine whether there are legal grounds for sending it.
- Oral and/or written consultation regarding the content, scope, and deadlines for providing the requested information.
- Drafting and formalizing responses to information requests from antimonopoly authorities.
- Extension of deadlines for providing a response.
- Protection of business entities from liability for violations of competition law related to failure to provide information, providing incomplete information and/or violating established deadlines, or submitting false information to antimonopoly authorities.
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Practice experience: 11 years Specialization: support of economic, civil, labor and administrative disputes, inspections
Even if you do not have the requested information, your response should still be well-reasoned and substantiated. Do not provide information that you cannot prove is accurate.
Providing information in response to a request (demand) from an authorized representative of the AMC is an obligation that we recommend fulfilling, as it does not depend on whether the AMC has initiated a case regarding violations of competition law.
Since the timeliness of providing a response to the AMC’s request is an important prerequisite for fulfilling this obligation properly, you should carefully calculate the amount of time required to provide the requested information.
No. The law does not specify a particular form for requesting information, so it can be made in any written form, except for those forms for which there is a direct legal prohibition.
The repeated failure of the same business entity to provide information in response to requests from the Antimonopoly Committee of Ukraine is not considered a continuing violation under Article 42 of the Law of Ukraine “On Protection of Economic Competition.” Instead, each failure constitutes an independent (separate) violation of the competition law.
According to the provisions of paragraph 13 of Article 50 of the Law of Ukraine “On Protection of Economic Competition,” each failure by a business entity to provide the required information within the specified timeframes in response to AMC requests is a separate legal violation, resulting in liability. Failing to provide the required information on time (within the established deadlines) constitutes two separate violations, which serve as grounds for liability for each such violation.
Yes, it can. The legislation does not restrict the scope of individuals from whom the Committee may request information to only those involved in the case as defendants or third parties. Requests for information can be sent to any individuals who may have information necessary for the Committee to exercise its powers, including those not related to the consideration of complaints (cases) about violations of competition law.
