Following numerous discussions with the public and in line with previously expressed commitment to increase the transparency and predictability of fines, yesterday, September 15, 2015, the Antimonopoly Committee of Ukraine (the AMC) approved and published the Recommendations on Calculation of Fines for Violation of Ukrainian Competition Law (the Recommendations) on its official website. The Recommendations highlight the methodology used by the AMC to calculate fines and introduce a one year amnesty period for merger control violations.
Ukrainian law vests the AMC with broad discretionary powers to determine the amount of the fine up to a very high cap expressed as a percentage of the worldwide turnover of the undertaking, for example, 10% for cartels or 5% for merger control violations. The Recommendations describe a set of principles, which the AMC will follow to determine the exact amount of the fine for various violations of competition laws, including cartels, abuse of dominance, failure to seek merger clearance, failure to respond to a request for information or submission of inaccurate information, etc. In simple terms, the AMC will calculate a base price as a percentage of the violators sales on the relevant market that would be subject to adjustment, depending on aggravating and mitigating circumstances.
In addition to the procedure for the calculation of fines, the AMC introduced a quasi-amnesty procedure for merger control violations that will be available for one year beginning from today, September 16, 2015. In case a company discovers that it failed to seek a merger clearance approval from the AMC in its past M&A activity, such company may apply to the AMC to obtain the approval post factum. Under the Recommendations, the AMC undertakes to shorten the list of documents and information necessary for obtaining the approval and to impose rather symbolic fines:
In addition to nominal amounts of fines, the AMC undertakes not to publish any news on the transactions notified under the amnesty procedure and shall keep such past violations silent.