Reinforced regulation
Jurisdiction over Anti-monopoly Committee cases

On April 19 2011 the Draft Law on Amendments to Several Laws Regarding the Strengthening of Regulation in the Sphere of Economic Competition Protection (7419) was adopted on its first parliamentary reading. On June 6 2011 the Draft Law on Amendments to Several Laws Regarding Commercial Court jurisdiction over jurisdiction of cases involving the Anti-monopoly Committee of Ukraine (7413) also passed its first reading.

Reinforced regulation

On June 1 2011 Parliament announced that the Committee on Economic Policy had formally recommended the adoption, on its second reading, of Draft Law 7419.

The draft law aims to reinforce the existing regulations on the protection of economic competition. In particular, it lists the issues that require an inference to be drawn regarding the nature of potentially anti-competitive actions and identifies the entities within the Anti-monopoly Committee that are authorised to draw such inferences. The bill also sets out the grounds on which proceedings on concerted actions may be terminated.

On the issue of fines and other penalties, the bill proposes to increase the minimum penalty for infringements of anti-monopoly legislation and requires foreign market participants to cover the expenditure connected with processing applications in foreign currencies.

The bill would also add provisions to Clause 62 of the Law on Protection of Economic Competition to allow an individual to present proof of postage of documents to the committee in the event that the committee or one of its regional offices did not receive such documents.

Jurisdiction over Anti-monopoly Committee cases

Draft Law 7143 is designed to resolve disputes arising from the application of provisions of the Code of Administrative Procedure, the Code of Commercial Procedure and the Law on Economic Competition Protection regarding determination of jurisdiction in disputes where one of the parties is the committee or one of its regional offices.

In particular, the draft law specifies that in accordance with the provisions of Article 2(2) of the Code of Administrative Procedure, any acts or omissions of state authorities may be contested in the administrative courts, except when Ukraine's laws or Constitution specify another court proceeding in relation to such decisions, actions or omissions. Pursuant to Article 4(2) of the code, the jurisdiction of the administrative courts extends to all public legal disputes, except disputes for which the law specifies a different court proceeding. Thus, pursuant to the statement of the administrative courts and Court Chamber on administrative cases of the Supreme Court, disputes involving the committee are subject to the jurisdiction of the administrative courts.

The Law on the Protection of Economic Competition stipulates that disputes involving the committee must be heard by the commercial courts. However, the administrative courts consider that this law is not procedural in nature; therefore, it cannot determine jurisdiction in such cases.

According to opinions from the commercial courts and the Court Chamber on commercial cases before the Supreme Court of Ukraine, challenges to the committee's orders (ie, decisions) are subject to the jurisdiction of commercial courts and must be pleaded under the rules of Commercial Procedural Code of Ukraine.

Draft Law 7143 provides that cases which arise in connection with the protection of economic and unfair competition involving the committee are subject to the commercial courts' jurisdiction. This may help entities that compete fairly to protect themselves from the harmful consequences of unfair competition by obtaining immediate enforcement of commercial court decisions, thereby incurring fewer procedural costs.

For further information on this topic please contact Oleh Malskyy at Astapov Lawyers International Law Group by telephone (+380 44 490 70 01), fax (+380 44 490 70 02) or email ([email protected]).