On 9 August 2023, the Parliament of Ukraine adopted the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Improving the Activities of the Antimonopoly Committee of Ukraine”.
This Law, a first step in competition law reform, brings Ukraine’s antimonopoly regulations closer to EU law following the nation’s obligations under its Association Agreement with the EU.
The Law primarily focuses on:
- dawn-raids and broadens the scope of the Antimonopoly Committee of Ukraine (AMCU) powers;
- the AMCU’s independence;
- significant amendments to AMCU investigation procedures;intro
- duction of a settlement procedure and new rules for a leniency programme; and
- amendments to important aspects of merger control rules.
Dawn raids and broadening the scope of the AMCU’s powers
Subject to court decisions that the AMC will be able to obtain under a simplified expedited procedure, the AMC will have the power to conduct dawn-raids (without prior notice to the company under investigation) and other related procedural actions, including entering the premises of companies, examining and removing copies of documents or other evidence, and sealing the business premises to search for additional evidence. The AMCU will also receive direct access to data stored in electronic public registers and other sources, including restricted access information (e.g. company information stored by banks, public notaries, etc.).
Amendments to AMCU investigation procedures
The Law introduces a maximum duration for investigation procedures (i.e. three years with a possible two-year extension in certain cases). The Law also gives broader rights to the parties of competition cases, including the ability to attend hearings, access photo/video records of the hearings, receive clarifications, make objections, and receive other additional explanations during the investigation, etc.
Introduction of a settlement procedure and a leniency policy
The Law also introduces a settlement procedure and provides new rules for a leniency programme.
In terms of settlement, the offending company has the right to resolve the matter voluntarily by admitting participation in anti-competitive behaviour and reaching an agreement with the AMCU. If there is a successful settlement, the party will receive a 15% reduction of its fine.
Regarding the leniency policy, companies can report their participation in anti-competitive concerted practices and cooperate with the AMC in exchange for full immunity from fines for the first reporting company or partial immunity (i.e. between 20% to 50% reduction in fines) for other cartel participants.
Amendments to concentrations regulation
The Law also amends provisions related to merger clearance proceedings, which inter alia include merger control thresholds and calculation of the parties’ financial indicators. One of the major anticipated changes is exclusion of the seller’s group for calculation of the triggering financial indicators in transactions where a target is not present in Ukraine (provided other additional conditions are met). The Law also modifies or introduces new definitions of certain terms such as “single property complex” and “control".
The Law awaits a signature by the President of Ukraine and will come into force on 1 January 2024.
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