Measure
2.2.5.4.1.
Drafting and submitting to the Cabinet of Ministers of Ukraine a draft law proposing to improve the mechanism of exemption from or mitigation of liability and stipulate that:
1) in order to be exempted from liability for concerted anticompetitive actions, the party involved in such actions must notify the Antimonopoly Committee sooner than the other parties involved in such actions about such concerted anticompetitive actions and submit an application seeking exemption from liability, which must be submitted before the issuance of the preliminary conclusions in this case;
2) the person who engaged in concerted anticompetitive actions and submitted the application seeking exemption from liability to the Antimonopoly Committee sooner than the other parties involved in such actions shall be fully exempted from liability for committee such concerted anticompetitive actions, if this person: has disclosed such concerted anticompetitive actions to the Antimonopoly Committee; has discontinued their involvement in the concerted anticompetitive actions no later than the date of submission of the application seeking exemption from liability, except where such involvement in the anticompetitive actions is needed in order to ensure the integrity of examination of the case; has cooperated with agencies of the Antimonopoly Committee; has presented the relevant evidence which the Antimonopoly Committee did not possess;
3) any party involved in concerted anticompetitive actions may file an application with the Antimonopoly Committee seeking mitigation of liability by presenting the relevant evidence of the commission of concerted anticompetitive actions, which is of material significance for the issuance of a decision in this case and which the Antimonopoly Committee did not possess, as long as this party has disclosed such concerted anticompetitive actions to the Antimonopoly Committee; has suspended their involvement in the concerted anticompetitive actions no later than the date of submission of the application seeking exemption from liability; has cooperated with agencies of the Antimonopoly Committee;
4) the grounds and procedure for exemption from liability or mitigation of liability shall be established by the Antimonopoly Committee;
5) the procedure for exemption from liability or mitigation of liability shall define the procedure for documenting the submission of applications seeking exemption from liability or mitigation of liability, and the requirements for the format of such applications;
6) the information that exposes concerted anticompetitive actions and is of material significance of the issuance of a decision in the case shall include, in particular, the details of the applicant; information about all known parties involved in the concerted anticompetitive actions; a detailed description of the purpose and nature of the concerted anticompetitive actions; information about the boundaries of the commodity market affected by them; the market share covered by them; a description of contacts and interactions among the parties involved in the concerted anticompetitive actions; information about evidence of the concerned anticompetitive conduct;
7) officials and officers of the Antimonopoly Committee are prohibited from disclosing information about the applicant and the information reported by them;
8) the Antimonopoly Committee shall examine cases involving exemption from liability or mitigation of liability as well as inform the applicants about the decision to apply (or deny the application) of the program of exemption from liability or mitigation of liability within the time frame established by the Antimonopoly Committee;
9) the persons exempted from liability shall not be subject to the requirements of the Law of Ukraine On Public Procurement pertaining to the prohibition from participating in the procurement process due to the commission of concerted anticompetitive actions, except for the persons who repeatedly engaged in concerted anticompetitive actions;
10) in case of mitigation of liability, the fine amount shall be reduced by the agency of the Antimonopoly Committee compared to the previously calculated fine amount depending on the sequence in which the other parties involved in concerted anticompetitive actions have divulged information that exposes the concerted anticompetitive actions and is of material significance for the issuance of decisions in the case (by up to 50 percent for the first person, by up to 30 percent for the second person, and by up to 20 percent for the other parties).
Measure status:
Actual execution date:
29.12.2023
The measure is aimed at achieving ESR:
2.2.5.4. To encourage disclosure of cartels, the mechanism of exemption or mitigation of liability of cartel members who report the cartel to the Antimonopoly Committee and provide relevant evidence has been improved on the basis of best practices of the European Union
Problem solving:
2.2.5. Insufficient information about the activities of the Antimonopoly Committee of Ukraine and the fact that it is vested with a number of discretionary powers complicate public control over its activities and cause a high level of corruption risks. There is no effective program to mitigate the liability of cartel members who have reported the cartel and provided evidence.
Deadlines:
Responsible implementors (authorities):
Sources of funding:
state budget
Volumes of financing (thousand UAH):
within the established budget allocations for the relevant year
Performance indicator:
The draft law has been submitted to the Parliament of Ukraine.
Implementing status
Progress/Result of implementation:
On June 30, 2023, the draft Law of Ukraine “On Amendments to Certain Laws of Ukraine Regarding the Improvement of the Mechanism for Exemption from or Mitigation of Liability” was published on the official website of the Committee for public discussion.
The draft Law of Ukraine “On Amendments to Certain Laws of Ukraine Regarding the Improvement of the Mechanism for Exemption from or Mitigation of Liability” was sent for approval to the interested central executive authorities (Ministry of Finance, Ministry of Economy, Ministry of Digital Transformation, National Agency on Corruption Prevention) and the Government Office for European and Euro-Atlantic Integration.
On August 2, 2023, a working coordination meeting was held to discuss the comments of the Ministry of Economy on the said draft law, and as a result of the meeting, the draft law was revised by the Committee.
At the same time, the Verkhovna Rada of Ukraine adopted the Law of Ukraine No. 3295-IX “On Amendments to Certain Legislative Acts of Ukraine Regarding the Improvement of Legislation on the Protection of Economic Competition and the Activities of the Antimonopoly Committee of Ukraine” on August 9, 2023 (hereinafter referred to as Law No. 3295-IX), which, among other things, regulates the issue of exemption from liability.
In order to implement, in particular, the provisions stipulated by the third paragraph of subclause 8, clause 4, and the fourth paragraph of subclause 27, clause 6 of Section I of Law No. 3295-IX, as well as to fulfill the Plan for the organizing the preparation of draft acts and the performing other tasks necessary to ensure the implementation of Law No. 3295-IX, following the instructions of D. Shmyhal, Prime Minister of Ukraine, No. 28773/2/1-23-23 of September 30, 2023, the Committee developed and adopted the following orders:
No. 18-rp dated November 30, 2023, “On Approving the Procedure for Settlement in Cases of Anti-Competitive Concerted Actions and Abuse of Dominant (Monopolistic) Position on the Market,” registered with the Ministry of Justice of Ukraine on December 27, 2023, under No. 2260/41316;
No. 19-rp dated November 30, 2023, “On Approving the Procedure for Exemption from Liability for Violations of Legislation on the Protection of Economic Competition in the Form of Anti-Competitive Concerted Actions,” registered with the Ministry of Justice of Ukraine on January 2, 2024, under No. 2/41347.
The aforementioned regulatory acts regulate, in particular, issues provided for by Measure 2.2.5.4.1 of the Program: at the level of the Law, issues provided for by subparas. 1–4, 7, 10 are regulated; at the level of subordinate regulation, issues stipulated by subparas 5, 6, 8 (the Antimonopoly Committee of Ukraine provided information on the subordinate regulatory acts and their provisions that govern these subparagraphs – more detailed information can be found in the sources of the measure).
At the same time, the measure provides for regulating at the legislative level the range of issues determined by certain subparagraphs; the adopted Law of Ukraine No. 3295-IX largely aligns with the State Anti-Corruption Program for 2023–2025 but does not contain provisions corresponding to subparagraphs 5, 6, 8, and 9 of clause 2.2.5.4.1 (of this measure). Therefore, the measure was implemented partially.