Certain problems of ensuring the constitutional principle of the rule of law within control over anticompetitive concerted practices

Abstract

The article examines certain problems of ensuring the constitutional principle of the rule of law in the process of control by the bodies of Antimonopoly Committee of Ukraine (the AMCU) over undertakings’ compliance with Ukrainian competition legislation in the area of prohibition of anticompetitive concerted practices. Analysis of current competition legislation regulating anticompetitive concerted practices and the practice of its application indicates existence of a number of problematic aspects of ensuring the rule of law in the researched area, in particular, in part of legal certainty and predictability of application of provisions of relevant competition legislation. In general, the above problems are generated by (a) broad wording of relevant competition legislation, wide use of evaluative concepts in it, which may result in different interpretations by various subjects, (b) lack of established practice regarding numerous basic issues of application of relevant legislation; (c) wide discretionary powers of the AMCU’s bodies in terms of establishing, proving and qualifying certain behaviour as violation of competition legislation and limited scope for review of the AMCU’s bodies’ decisions by courts. One of the most notable practical problems is distinguishing individual competitive behavior of an undertaking from the one coordinated with another undertakings. This problem is clearly manifested within enforcement of Article 6(3) of the Law of Ukraine «On the Protection of Economic Competition» (the Law) setting grounds for qualifying similar (parallel) behavior of undertakings as anticompetitive concerted practices. The existing practice of application of Article 6(3) of the Law is criticized by law practitioners as the one creating legal uncertainty regarding boundaries of what is permitted and what is prohibited for undertakings, and the necessity of its preservation in the Law is questioned. One of possible ways to resolve existing problems of legal uncertainty and unpredictability in distinguishing individual competitive behavior from coordinated one in the presence of similar behavior of different undertakings on the market could be to remove Article 6(3) from the Law. At the same time, such legislative changes may not have the expected positive effect without solving the issue of the above distinguishing at the methodical level. This, in turn, could be achieved via adoption by the AMCU of relevant methodical recommendations/recommendatory clarifications to be developed with due account to the best world practices in similar cases, first of all, approaches applied within the EU, and their actual observance by the AMCU’s bodies themselves in practice. Key words: Constitution, rule of law, constitutional rights, human rights, constitutional principles, constitutional economics, entrepreneurship, competition, state protection of competition, Antimonopoly Committee of Ukraine, control over compliance with legislation, concerted practices, anticompetitive concerted practices, legal certainty, predictability of law enforcement.