The fine as a form of liability for anti-competitive concerted actions: novelties of the competition legislation of Ukraine and review of the AMCU practice

Abstract

The article analyzes the provisions, including novelties, of the Ukrainian competition law on determining the amount of fines imposed for anticompetitive concerted actions. The article analyzes certain provisions of Ukrainian legislation, in particular, the Law of Ukraine «On Protection of Economic Competition» and the Procedure for Determining the Amount of a Fine Imposed for Violation of the Law on Protection of Economic Competition, approved by the AMCU Order No. 22-rp dated December 14, 2023. The author analyzes the provisions of competition law regulating the mechanisms of: 1) determination of the basic amount of a fine; 2) adjustment of the amount of a fine taking into account the circumstances which are taken into account when determining the amount of a fine and increase or decrease the amount of a fine compared to the basic amount of a fine; 3) determination of the maximum amount of a fine. The author cites the practice of the Antimonopoly Committee of Ukraine to support the statements made in this paper. The authors emphasize that the Procedure has solved one of the existing problems of legal regulation in this area. However, this legal act still provides for unlimited discretion of the AMCU in determining the basic amount of the fine, which leads to the possibility of attempts to influence the authorized representatives of the antimonopoly authorities in order to reduce the amount of the imposed penalties. Based on the analysis of the provisions of the Procedure, the Law of Ukraine and the AMCU Decisions on violation of legislation on protection of economic competition and imposition of a fine, the authors conclude that the provisions of the above Procedure are imperfect in terms of legal regulation of the mechanism for reducing the basic amount of a fine in the presence of circumstances provided for by it. The solution of this problem will be facilitated by cooperation of the business entity that has committed or agreed to commit anticompetitive concerted actions with the bodies of the Antimonopoly Committee of Ukraine. In view of the above, it is proposed to amend the competition legislation of Ukraine, including the Procedure.