On August 20, 2009, at 2 pm a round table entitled “Antitrust Legislation: From Problems to Ways of Overcoming Them” took place at LIGABusinessInform press-center.

Global financial recession has aggravated the antitrust legislature problems. In addition to the usual concerted practice between major oil suppliers, resulting, naturally, in an unreasonable petrol prices, Ukrainians have experienced the concerted actions in terms of a nearly double increase of price for pharmaceuticals, across-the-board price flare-up in leading supermarket chains, etc. Regional antitrust investigation profiles witness that anticompetitive collusions are fairly often practiced by grain traders, sugar producers and petrol station owners.

Antitrust legislation has long been characterized by low efficiency. However, it has provided a background for some significant steps designed to demonopolize economy and create a competition environment. This is due to that fact that until recent time the purpose of antitrust legislation was generically different from that of the present-day competition law regulation of the national economy.

Round table participants, in particular, Yuriy Kravchenko, First Deputy Chairman of the Antimonopoly Committee of Ukraine and state officer; Sergiy Boyko, President of Volia Kabel CJSC, Ivan Rychka, First Deputy Chairman of Board of Kyivenergo JSC, Senior Associate of Vasil Kisil & Partners law firm Mariya Nizhnik specializing in antitrust and competition law, as well as representatives of other leading Ukrainian law firms, discussed the issue which is now vital for many concerned parties: how can we overcome the existing situation regarding the antitrust legislation in Ukraine?

Yuriy Kravchenko, First Deputy Chairman of AMCU, informed that at its session the Antimonopoly Committee of Ukraine has adopted principal approaches and directions for developing the system of economic competition protection.

According to Mr. Kravchenko, the principles of improving the antitrust legislation which are contained in the document AMCU submitted for approval to the profile committee of the Verkhovna Rada, can be systemized in three groups:
 

Inter alia, Mr. Kravchenko underlined: "Ukraine needs a precise representation of approaches and procedures pertaining to collection of evidence in cases considered by AMCU bodies".

In his opinion, one of the possible ways to settle this matter is to amend the current legislation by introducing criminal liability of individual proprietors for concerted practice. “We may arrange a distinct evidence collection procedure through criminal proceedings,” mentioned Mr. Kravchenko, adding that Verkhona Rada has already elaborated and adopted such a draft law in the first reading. AMCU First Deputy Chairman further commented that in his view our society is not yet ready for the introduction of criminal liability for concerted actions.

Considering the possible difficulties associated with the adoption of such law, the Committee, Mr. Kravchenko explained, is currently preparing another draft law providing amendments to be introduced to some legislative acts in respect of securing evidences in cases under consideration of AMCU bodies. The document clearly determines the basic principles of case proceedings, distinctly defines the grounds to commence proceedings; defines the legal status of experts and persons involved in the proceedings; explains the concept of written evidence and using e-documents as evidence.

Besides, the draft law regulates the procedure that allows persons authorized by the Committee to take such actions within the proceedings as making inquiries, field checks, searches in offices and vehicles owned by market participants.

According to Mr. Kravchenko, lawmakers are planning to invite European experts to contribute to the draft law elaboration process.

For the reference, on June 3, Verkhovna Rada adopted in the first reading the draft law “On Amending Some Legislative Acts of Ukraine in Respect of Establishing Liability for Anticompetitive Concerted Actions” No. 3577 dated December 29, 2008. This draft law envisages criminal liability to be incurred by individuals who are part of concerted practice.

Pursuant to the draft law, anticompetitive concerted actions related to setting selling and purchase prices for products or market allocation, or restrictions upon and suspensions of products production or products sale and purchase, are punished by the imposition of a fine in the amount of 1 to 5 thousand statutory exempt surpluses or restraint of liberty for a period of up to 5 years, or by imprisonment for a period of up to 6 years.

Business entity executives participating in the round table, concerned by such investigations, in return expressed their opinions on specific cases.

Legal firm representatives further described the problems market participants face in terms of antitrust legislation. In the opinion of Mariya Nizhnik, “Due to recession the importance of time factor has significantly increased. However, the imperfection of current laws regulating economic competition, including the lack of simplified licensing procedures for cases when results of a transaction evidently have no bearing upon and are unlikely to have any bearing upon the competition in Ukraine, as often as not makes even the law-abiding market participants violate the legislative requirements”.