Key trends in Ukrainian antitrust practice

In July 2015, the Antimonopoly Committee of Ukraine (“AMC”) started publishing the full texts of its decisions on-line.

Certain key trends which may be observed on the basis of these recently published decisions are as follows:

  • The AMC imposed significant fines for the following types of violations:

- anticompetitive concerted actions by means of data sharing among competitors;

- bid rigging during public procurement tenders;

- abuse of dominant market position (principally by means of charging excessively high prices); and

- unfair competition by means of providing false statements in advertisements.

  • Other common types of violations, such as unauthorised concentrations and failure to provide information to the AMC, resulted in relatively low fines.
  • Among the fines for unauthorised concentrations, the majority were imposed in relation to foreign-to-foreign concentrations. Overall, there have been approximately 50 instances of fines for unauthorised concentrations, 35 of which were foreign-to-foreign concentrations. However, the largest fine imposed by the AMC for an unauthorised foreign-to-foreign concentration was only Euro 5,900. The fines on the lower end were as little as Euro 1,380.
  • There have been no attempts by the AMC to invalidate or void a transaction based on failure to obtain its clearance.
  • The "amnesty" step is not actively used, and there have been only 15 or so approvals granted via this route. This may be due to the following reasons:

- if a company decides to "come clean" to the AMC and proceeds with an amnesty filing, it should normally be prepared to obtain clearances for all future concentrations where a Ukrainian clearance is formally required (otherwise there is less rationale for proceeding with an "amnesty" filing);

- however, the newly introduced thresholds remain low, which means that, for many international companies, a large number of foreign-to-foreign concentrations would trigger notification obligations in Ukraine; and

- as a result, such companies may take a decision not to proceed with "amnesty" filings since they do not plan to obtain clearances in Ukraine until the notification thresholds are raised to more acceptable levels and certain other changes are introduced (mainly removal of the requirement to aggregate the Target's turnover with that of the Seller's group when determining turnover thresholds).

In addition, the "amnesty" route does not reduce the number of documents required for the filing to be made, and this may be an issue for transactions which occurred several years back as it may be difficult to locate all the documents needed for the filing.

  • The AMC appears to be following its recently published Guidelines for Setting Fines, which significantly limit its discretion in determining the amount of fines.

If you would like to receive further information in connection with the above, please contact Dmytro Fedoruk or Natalia Gerus.