Ukrainian competition legislation on its way to improvement
Earlier this morning, 12 November 2015, the Parliament of Ukraine has voted for the three long-awaited draft laws that are called to significantly improve the competition regulation in the country. Based on the parliamentary voting, one draft law was approved today and is now on its way for President’s sign-off, while two other draft laws are being prepared for the second reading.
The Draft Law 2102 On Providing Transparency of the Activity of the Antimonopoly Committee of Ukraine (Draft Law 2102)
According to Draft Law 2102, the Antimonopoly Committee of Ukraine (AMC) is obliged to publish on its official web-site the following:
- information on initiation of the concentration or concerted practices investigations (name and legal nature of the parties to concentration or concerted practices, type of concentration or concerted practices);
- decisions as the result of review of applications, cases on concentration or concerted practices (except for information with limited access);
- decisions as the result of review of cases on violation of competition legislation (except for information with limited access)
during 10 working days after the adoption of such decisions/order.
The Draft Law 2102 was approved today and is now sent for signing by the President. The President shall sign the document within 15 calendar days after which the publication of the law shall be made in another 15 days. After the law is duly published, it will come into force in three month period. Ultimately, the current law shall come into effect as early as in the beginning of March 2016.
The Draft Law 2168a On Increasing the Efficiency over Merger Control (Draft Law 2168a) envisaging the increase of the existing financial thresholds that trigger the filing requirement in Ukraine and simplification of the merger control procedure
Draft Law 2168a introduces a two-tiered system whereby a merger clearance will be required in any of the following two cases:
- the combined worldwide sales or assets of all the parties to the concentration exceed EUR 30 million and at the same time the sales or assets in Ukraine of each of at least two parties exceed EUR 4 million; or
- the sales in Ukraine of at least one party exceed EUR 8 million, while the sales of at least one other party exceed EUR 100 million worldwide.
In addition to increase of financial thresholds and complete elimination of the market share threshold, the draft law simplifies the merger review procedure as follows:
- allows to conduct preliminary consultations with the AMC to check completeness of the information and documents;
- introduces a short-cut procedure for issuing the decision within 25 calendar days for the following cases:
- only one party is active in Ukraine; or
- combined market share of the parties on one product and geographical market does not exceed 15 per cent;
- individual or combined market shares that are of higher or lower level to the market concerned by the concentration do not exceed 20 per cent.
- provides for the possibility for the parties to offer behavioral remedies to the AMC that would eliminate the negative consequences on the market resulting from the proposed transaction;
- increase of administrative fee payments by 4 times.
The Draft Law 2168a is currently set for the second reading during which the Parliament will either adopt the changes to the law or schedule its review for the third reading. At this stage, it is not clear when the second reading will take place, yet the community expects the law to be adopted still this year or at least during the current Parliament session, which ends in January 2016.
In addition, there are high chances that by the second reading the law drafters may further remodel the new thresholds.
The Draft Law 2431 On Determining by the Antimonopoly Committee of Ukraine of the Amount of Fines for Violation of Legislation on Protection of Economic Competition (Draft Law 2431)
Draft Law 2431 stipulates that the amount of fine for violation of economic competition should be calculated based on the Recommendations on Calculation of Fines for Violation of Ukrainian Competition Law that were adopted by the AMC in September (see our press release).
In addition, Draft Law 2431 entitles the defendant in the case on violation to appeal against AMC’s decision to the commercial court with respect to the fine and/or obligation on elimination of consequences of the violation. According to the Draft Law 2431, the commercial court should amongst other apply the Recommendations on Calculation of Fines for Violation of Ukrainian Competition Law while considering the appeal.
It is also stipulated that in its decision the commercial court may leave AMC’s decision without changes, change the amount of a fine, change an obligation on elimination of consequences of the violation, and annul the decision of the AMC completely.
The Draft Law 2431 is also set for the second reading during which the Parliament will either adopt the changes to the law or schedule its review for the third reading. It is also not clear when the second reading will take place, yet the community expects this law to be adopted still this year along with the adoption of Draft Law 2168a.