Trends in the practice of antitrust and competition law of Ukraine for 2011          
Victoria Ptashnyk, Associated partner with the Legal Alliance Company
Oksana Kondratieva, Counsel with the Legal Alliance Company, Head of Competition & Antitrust  practice

1.Granting to the AMCU powers, inherent to law enforcement agencies. The AMC developed and published the draft Law “On Amending the Law of Ukraine “On Protection of Economic Competition” concerning provision of evidence in cases being considered by the Antimonopoly Committee of Ukraine." This draft will establish the legislative procedure of inspection of the observance of legislation on Protection of Economic Competition. In particular, in case of the adoption of the draft, AMCU will be granted with the right to unrestricted access to places of information storage (except for entry into a dwelling or other personal possessions, which will be possible only by court order), seizure of evidence, sealing premises, communication systems, places for storage of information, involvement of witnesses and so on. Today, due to existing provisions of the Law of Ukraine "On Protection of Economic Competition" a search of business premises, as well as entry into a dwelling or other personal possessions by the AMCU personnel is not possible.

2. Tougher penalty policy of AMCU

2.1. Increased the maximum fine that may be imposed by territorial offices of AMCU from 17 thousand to 68 thousand UAH;

2.2. The policy of imposing fines on "offenders-recidivists" becomes more rigorous;

3. Analysis of the advertising of business entities by of AMCU and providing recommendation clarifications concerning their actions under the requirements of antitrust legislation.As a result of legislative changes, business entities are able to ask the AMCU whether advertising which is under development or advertising, which has seen the light is being misleading.

• The positive aspect of this innovation is the appearance of such a possibility in general, which could theoretically reduce the risk of failure to comply with the requirements of the antimonopoly legislation.

b) The disadvantages of innovations are:

• Their advisory nature;

• Long-term consideration of applications concerning granting conclusion on compliance of actions (1 month);

• Deprivation of the opportunity to change or clarify the text of advertising that is analyzed. In case of changes or corrections to the advertising the applicant must submit a new application.

In addition, interested persons have been granted an opportunity to initiate an investigation concerning conformity of the competitor's advertising with the antitrust law. This innovation may become both a positive development and another tool of unfair competition.

4. Changes in obtaining permits for concentration

4.1. Has been determined a list of documents to be submitted on participants of merger of foreign entities registered in offshore zones.

4.2. There are non-residents the opportunity to make payment in Euros or U.S. dollars at the official rate of National Bank of Ukraine on the date of such payment.

5. Consideration of cases by AMCU

5.1. Have been set a period for acceptance of application for verification of the decision in cases of violation of legislation on Protection of Economic Competition, and restricted maximum period for consideration of an application for verification (2 months).

5.2. Have been established new grounds for termination of proceedings on concerted actions, concentration of business entities without a decision in fact: the presence of the decision of the AMCU body on recognition of the stated concerted actions and/or concentration as being made in breach of legislation On the Protection of Economic Competition as well as liquidation of the applicant - legal person.

6. Other legislative initiatives of the AMCU in 2011, which have not yet been adopted

6.1. Has been developed the procedure for exemption from liability for anticompetitive concerted actions. Adoption of this agenda will contribute to revealing cartels and combating them, because the mechanism of exemption from liability for participating in the cartel, provided for by the aforementioned project, is the main instrument of collection of evidence of participation of entities in the cartel agreements in the EU.

6.2. Has been developed and worked out in the committees of VerkhovnaRada a new bill stipulated: 1) significantly increasing the value costs, in reaching which the entity must obtain merger clearance, 2) removing the need to independently calculation of the market share by business entities to determine a necessity of obtaining merger clearance, 3) it is proposed to increase to 50% the size of market share, above which the entity is recognized as holding the monopoly (dominating) position.

7. Determination of the status of public organization.State Committee of Ukraine for Regulatory Policy and Entrepreneurship provided explanations according to which the public organization is not been recognized as an entity and its activities are not subject to the Law "On the Protection of Economic Competition."