The Antimonopoly Committee of Ukraine (AMC) started its activity in 1993 after adoption of the Law of Ukraine 'On the Antimonopoly Committee of Ukraine'. The AMC is a state body with special status, which aims to perform a key role in the sphere of control over economic competition. The AMC is an autonomous body and is independent from executive state authorities, municipal authorities, business entities, political parties and other unions.

The structure of the AMC bodies includes the AMC head office and 27 local offices established by the AMC throughout Ukraine. Local offices have a status of separate legal entities and perform tasks of the AMC on the regional level.

The AMC (ie, head office) consists of the chairman and eight state commissioners appointed for a seven-year term. The chairman is appointed by the president subject to Parliament's consent. State commissioners are appointed by the president upon recommendation of the prime minister of Ukraine who, in his or her turn, is based upon the list candidates provided by the AMC chairman. Chairmen of the local offices are appointed by the chairman of the AMC.

The AMC is subordinated to the president of Ukraine. The AMC also reports on its activity to the Parliament on the annual basis.

Main tasks of the AMC include, inter alia:

  1. performance of state control over protection of economic competition, prevention, revelation and termination of violations of economic competition laws;
  2. regulation of prices for goods (services) produced (provided) by subjects of natural monopolies;
  3. performance of control over concentrations, concerted actions; and
  4. assistance in development of fair competition in Ukraine.

Recently the AMC intensified its inspections of concerted actions and focused on fighting cartels. For this purpose, the AMC has introduced a Draft Leniency Programme envisaging indemnity for the participant in anti-competitive practices who

assists the AMC in revealing and investigating such concerted actions. Currently, the applicable laws of Ukraine envisage release from liability for anticompetitive concerted actions those who inform the AMC about such concerted actions. However, no mechanisms for practical implementation of such release are set forth in Ukraine. The Draft Leniency Programme is currently under public discussion and consideration.

The AMC also increases its control over the concentrations on a constant basis. The past year has been characterised by several legislative amendments which influenced enforcement of antitrust rules in Ukraine.

One of the amendments to the Concentration Regulation which entered into effect on 19 August 2011 concerns the list of documents to be submitted to the AMC within filing merger clearance application. Based upon these amendments parties to the concentration incorporated in offshore zones have to submit to the AMC information regarding beneficiary owners and documents entitling third parties to perform functions of nominal shareholders and nominal directors. Earlier (ie, before the said amendment entered into effect) parties to the concentration had to disclose to the AMC full information on their relations of control which included information on their beneficiary owners. However, there was no requirement to provide any documents in this respect.

The AMC tends to increase the penalties imposed for violation of economic competition rules. Moreover, based upon the new wording of the Law on Protection of Economic Competition, since 27 July 2011 a new fine of up to 1 per cent of income of a business entity for the last year preceding the year in which the fine is imposed has been adopted. Such fine is envisaged for inducing of business entities to breach of economic competition laws or for assisting them in committing of such breach.

In respect of assisting in fair competition, the AMC actively cooperates with state authorities. One of the most important spheres of this activity is estimation of influence on competition of legislative acts and other decisions of stateauthorities, providing recommendations thereto in order to comply with economic competition laws.

The AMC also focuses its attention on international cooperation and adaptation of Ukrainian laws to international and European standards. The AMC cooperates with the antitrust agencies of Austria, Bulgaria, Lithuania, Latvia and Poland, among others. In 2011 the AMC took part in a number of international forums and working group meetings which concerned, inter alia, coordination of economic and competition policies, estimation of effectiveness of antitrust agencies, fighting cartels and the examination of markets such as air transport services, telecommunications and retail.

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Vasil Kisil & Partners
Mariya Nizhnik
nizhnik@vkp.kiev.ua
www.kisilandpartners.com

Mariya Nizhnik is a counsellor in the antitrust and competition practice of Vasil Kisil & Partners. Ms Nizhnik focuses on general corporate and competition matters. Mergers and acquisitions, commercial agreements (such as joint ventures, distribution and licensing arrangements, development activities, or strategic alliances), abuse of dominance or other competition investigations are her key areas of competition practice. Ms Nizhnik has gained extensive experience through advising the firm's foreign and domestic clients on private and government competition issues in a number of global M&A transactions. Ukrainian Law Firms, a Handbook for Foreign Clients named her one of the best lawyers practising antitrust law and commercial law. In 2009 international legal guide The Legal 500 recommended Mariya Nizhnik for her professional qualities. In 2011 Ms Nizhnik was nominated for the position of exclusive legal adviser for competition law in Ukraine. Mariya is co-chair of Legal Committee of the American Chamber of Commerce in Ukraine, a member of the Non-Commercial Association 'Promotion of Competition Development in CIS' and a member of the Ukrainian Bar Association.
Oksana Franko

Vasil Kisil & Partners
Oksana Franko
franko@vkp.kiev.ua
www.kisilandpartners.com

Oksana Franko is a leading associate with the antitrust and competition practice of Vasil Kisil & Partners. Ms Franko focuses on competition and corporate matters. She advises clients on issues related to merger clearance compliance, concerted actions, as well as on issues related to abuse of dominance and other competition investigations, which are her key areas of competition practice. Ms Franko represented firm's clients with the Antimonopoly Committee of Ukraine in a number of acquisitions of well-known Ukrainian monopolists (including energy sector). Oksana also participated in a number of M&A and corporate restructuring projects, projects covering the legal due diligences with particular focus on antitrust compliance issues. Oksana Franko is a member of Kiev City Bar Association.

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