Сertain problems of ensuring the constitutional principle of rule of law in the process of control over abuse of a monopoly position

Abstract

The article is devoted to the study of the problems of implementation of constitutional foundations of state protection of competition in Ukraine, namely, the problems of ensuring the constitutional principle of rule of law within the process of conducting control by the bodies of the Antimonopoly Committee of Ukraine (the "AMCU") over compliance of undertakings occupying monopoly (dominant) position on relevant markets with legislation on protection of economic competition. Analysis of relevant Ukrainian legislation, as well as practice of its application, shows that there is a number of problems related to ensuring the rule of law principle in the researched area in practice, in particular, in terms of predictability of application of Article 13 of the Law of Ukraine "On Protection of Economic Competition" (the "Law") setting grounds for qualification of an infringement in the form of abuse of a monopoly (dominant) position. This is explained by use of broad formulations and evaluative concepts in the above article, which may have different interpretations. At the same time, breadth and certain abstractness of the formulations seem to be justified, as infringement can have a wide number of manifestations that objectively cannot be clearly reflected in the legal norm. Due to such specificity, leading role in eliminating legal uncertainty should be assigned to the law enforcement practice of the AMCU’s bodies and courts.
 Currently, the law enforcement practice does not provide answers to a number of fundamental questions regarding application of Article 13 of the Law, which results in blurred boundaries between permissible and prohibited behavior for undertakings occupying monopoly (dominant) positions. Existing legislation, as well as law enforcement practice, does not provide clear and unambiguous legal guidelines when certain behavior of an undertaling occupying a monopoly (dominant) position is deemed legitimate, and when it becomes unlawful (abuse of monopoly (dominant) position), which consequently creates legal uncertainty. Considering specifics of legislation on protection of economic competition, one of possible ways to eliminate such uncertainty could be issuance of recommended explanations/methodological recommendations by the AMCU to be developed with due account to best world practices, primarily, of the European Union, and clarifying the AMCU’s general approaches towards assessment of certain commercial practices specifically as abuse of monopoly (dominant) position, with outline of legal and economic methods for establishing the above infringement depending on its different types indicated in Article 13 of the Law.