On 5 October 2012 the first ever Leniency Regulation came into effect in Ukraine following its adoption by the Antimonopoly Committee of Ukraine (AMC) on 25 June 2012. The rule theoretically allowing undertakings to apply for leniency has been in place in Ukraine since 2002, when the relevant provision was introduced by the Competition Law. However, the absence of clear and adequate procedural rules hindered its effective implementation. The long-awaited Regulation clarifies requirements for immunity applicants, details the information and evidence an undertaking should provide in order for its application to be successful, establishes a review procedure, etc.

The Leniency Regulation details the requirements to leniency applicants clarifying that (i) only the first-to-apply can benefit from immunity; (ii) the applicant will not be considered in breach of the immunity requirements if it did not cease to participate in a cartel in order obtain the necessary evidence (upon AMC's approval); (iii) that an applicant which was managing and/or leading the cartel cannot benefit from immunity. The detailed procedural rules introduced by the Leniency Regulation provide, among other points, that (i) the AMC will appoint an authorized person to accept and deal with leniency applications; (ii) a marker system is introduced, i.e. an undertaking can apply based on limited information for a marker-letter securing its 1st place on the list of immunity applicants, provided it is in a position to subsequently obtain and submit the relevant evidence. Importantly, an undertaking can apply for immunity even after the AMC has initiated an investigation into the alleged cartel, although the application must be made prior to the issuance of the so-called "preliminary conclusion". The Leniency Regulation does not provide for reduction in fines and does not explicitly allow several undertakings to apply for immunity from fines in one cartel case.

Beyond all doubt, this document is an important step towards better prevention, detection, and fight against cartels.

For further information please contact partner Igor Svechkar
and associate Volodymyr Solohub