On 25 June 2012, the Antimonopoly Committee of Ukraine by its Order No. 339-р approved the "Procedure for submission of applications for release from liability for violation of legislation on protection of economic competition as provided by clause 1 of Article 50 of the Law of Ukraine "On Protection of Economic Competition" (the "Procedure "). The Procedure was registered with the Ministry of Justice on 7 September 2012 and came into effect from 5 October 2012.

The effective legislation (clause 1 of Article 50 of the Law of Ukraine "On Protection of Economic Competition") contains a rule that a person who committed anticompetitive concerted actions, but before the others participants of such actions voluntarily reported the Antimonopoly Committee of Ukraine (the "AMCU") and provided information that is key for adoption of a decision on the case, shall be released from liability. However, until recently, this provision did not contain a detailed procedure of its application and, to the knowledge of AMCU representatives as of August 2011, it had never been applied in Ukraine.

Possibility of release from liability (leniency program) is provided for in the legislation of many countries and it is the most effective mechanism to reveal violations of the competition law, such as cartels.

The new Procedure stipulates a detailed procedure for release from liability, requirements to the application for release from liability, cases and conditions where the release from liability is applicable. In particular, in order to be released from liability, the person (the "Applicant"):

§  must be first to report its involvement in anticompetitive concerted actions;

§  must provide the information that is key for adoption of a decision in the case (reveal the other participants, provide evidence confirming the concerted competitive behavior, etc.);

§  must terminate its involvement in the actions (except the cases where such involvement is necessary to provide additional information to the AMCU).

The Applicant may not be relieved from liability if he was the initiator, or managed these activities, or failed to provide all of the evidences or information regarding his involvement into anticompetitive concerted actions, which were available to him.

If the Applicant wishes to apply to AMCU for release from liability, but does not possess all the information required for filing the application (but such information can be furnished later), in order to establish priority in reporting the anticompetitive concerted actions, the Procedure provides for the possibility of filing an application on obtainment of a marker-letter. The marker-letter shall confirm priority of the Applicant's request to AMCU for release from liability. In such case, AMCU shall set a deadline for submission of the rest of the information required for getting a release from liability, which may not exceed 30 days.

Also, the Procedure establishes the possibility for the Applicant to approach AMCU with a reasoned petition requesting that the relevant application and the enclosed information shall be treated as information with restricted access. In such case, the Applicant would be obliged to provide the AMCU with the relevant information of narrative non-confidential nature.

Should you have any questions with regard to the procedure of release from liability for anticompetitive concerted actions or require legal support in the field of antitrust law, please feel free to contact us.

Natalia Pakhomovska

Legal Director

T +380 44 490 9589

natalia.pakhomovska@dlapiper.com

Galyna Zagorodniuk

Legal Director

T +380 44 490 9561

galyna.zagorodniuk@dlapiper.com

DLA Piper ukraine llc is part of DLA Piper, a global law firm.

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