Release and mitigation of liability of participants in anti-competitive actions for reporting them to anti-monopoly authorities: the issue of improving the grounds and procedure

Abstract

The liability mitigation mechanism has significant potential to increase the likelihood of serious and difficult-to-investigate anti-competitive offenses by encouraging offenders to cooperate with antitrust authorities by providing them with evidence and information on the circumstances of their anticompetitive liability in order to be granted more favorable legal consequences of their participation in relevant anti-competitive offense. However, the provisions of the competition law of Ukraine provide for the release of only the participant in anti-competitive practices, who was the first to voluntarily notify the competition authority and provide information that is essential for decision-making in the case. The shortcomings of our domestic legislation in this part are, firstly, insufficient regulation of the procedure for determining the eligibility of a participant in anticompetitive practices with the conditions for release from liability and, secondly, the lack of any statutory legal incentives for those participants in anticompetitive actions that report anti-competitive practices later after the first participant. Referring to the best foreign experience and the most progressive positions of the world scientific community, it is obvious that the legislation of Ukraine should be amended with a provision that an economic entity that is not the first to notify the antitrust authority of its participation in anticompetitive actions may expect mitigation of his liability, provided that he provides evidence that has significant added probative value in addition to the evidence already available to the competition authority. The Law of Ukraine on Protection of Competition should as well be supplemented with the provision that economic entities that intend to submit a notice of participation in anticompetitive concerted actions should be given the opportunity to secure for a reasonable period of time a priority in applying for this notice to its formal submission in accordance with all applicable rules, etc., to enable the applicant to prepare all necessary information and documents to comply with the rules on discharge in terms of the value of evidence for the investigation of anti-competitive concerted practices.