Cooperating parties

Immunity

Is there an immunity programme? If so, what are the basic elements of the programme? What is the importance of being ‘first in’ to cooperate?

Leniency programmes are allowed in Ukraine. A full release from liability is granted only to the participant in collusion that first appealed to the AMCU with its application. The proof of first application is the marker letter of the AMCU.

Member cartels claiming immunity must first voluntarily notify the antimonopoly authority about their participation in the anticompetitive concerted actions. At the same time, a participant has to provide information essential for rendering a decision on the case. Throughout the investigation, this party should cooperate as much as possible with the antimonopoly agency.

It is also worth noting that the party is not relieved from liability and does not receive immunity if it acted as the initiator of anticompetitive concerted actions, provided for control of such actions or has not provided all the evidence and information about the commitment of anticompetitive concerted actions that it was party to and could freely obtain.

Subsequent cooperating parties

Is there a formal programme providing partial leniency for parties that cooperate after an immunity application has been made? If so, what are the basic elements of the programme? If not, to what extent can subsequent cooperating parties expect to receive favourable treatment?

The official immunity programme does not provide leniency to individuals who appealed to the competition authorities following the application of immunity. However, it should be noted that in accordance with paragraphs 17 and 18 of the Recommendation Clarifications of the Antimonopoly Committee, the fine for violation of legislation on economic competition may be reduced to 50 per cent where evidence of the existence of mitigating circumstances is presented. Among such circumstances, the following should be noted:

  • termination of actions that contain elements of a violation before the relevant decision of the AMCU;
  • remedying the conditions that contributed to commitment of the offence to the relevant decision; and
  • cooperation throughout the proceedings with the committee authorities that contributed to clarifying the circumstances of the case.

 

Depending on the circumstances of the case, other mitigating circumstances may be taken into account indicating that the defendant has committed actions aimed at mitigating the negative effects of a violation of competition in the interests of consumers on the commodity markets of Ukraine.

Going in second

How is the second cooperating party treated? Is there an ‘immunity plus’ or ‘amnesty plus’ treatment available? If so, how does it operate?

The immunity programme can only be granted to the first party of anticompetitive concerted actions appealed to the office of the AMCU. Other participants of anticompetitive concerted actions had better cooperate with the AMCU in the process of considering the case, as such cooperation may be regarded as a mitigating circumstance when rendering the decision. The above-mentioned conditions of cooperation are laid down in paragraphs 17 and 18 of Recommendation Clarifications of the Antimonopoly Committee No. 39–pp.

Approaching the authorities

Are there deadlines for initiating or completing an application for immunity or partial leniency? Are markers available and what are the time limits and conditions applicable to them?

The basic requirement of legislation regarding the application of immunity is the necessity of submission of application on release from liability before the date of presentation of the preliminary findings of the case.

There is a practice of marker letters in Ukraine. The participant may apply for a marker letter that confirms the primacy of its application to the committee on the release from liability.

Cooperation

What is the nature, level and timing of cooperation that is required or expected from an immunity applicant? Is there any difference in the requirements or expectations for subsequent cooperating parties that are seeking partial leniency?

The applicant is entitled to immunity (full release of liability) if, at the same time, it satisfies the two following conditions.

First, it voluntarily reports its participation in the anticompetitive concerted actions before other participants of anticompetitive concerted actions.

Second, it provides information essential to the decision in the case. Its amount and content have to prove the violation of competition legislation in the form of a commitment to anticompetitive concerted actions, in particular, information on the membership of the participants in anticompetitive concerted actions; and the existence and content of agreements, notes, memos, correspondence, minutes of general meetings proving coordinated competitive behaviour, while presenting relevant supporting documents, evidence on paper or other media.

It is also worth noting that a party is not relieved from liability and does not receive immunity if it acted as the initiator of anticompetitive concerted actions or provided for control of such actions.

Confidentiality

What confidentiality protection is afforded to the immunity applicant? Is the same level of confidentiality protection applicable to subsequent cooperating parties? What information will become public during the proceedings and when?

Limited access is a special information regime that is to be established in the interest of the competition investigation for protection of a party applying for such regime upon a substantiated request. In this case the applicant has to provide the AMCU with a corresponding non-confidential version of its information.

Settlements

Does the investigating or prosecuting authority have the ability to enter into a plea bargain, settlement, deferred prosecution agreement (or non-prosecution agreement) or other binding resolution with a party to resolve liability and penalty for alleged cartel activity? What, if any, judicial or other oversight applies to such settlements?

There is no dispute settlement mechanism enshrined in the law allowing the AMCU and parties to the investigation to enter into deals on admission of guilt or otherwise.

Corporate defendant and employees

When immunity or partial leniency is granted to a corporate defendant, how will its current and former employees be treated?

Ukrainian legislation does not provide for employee responsibility for anticompetitive concerted actions. Under the amendments made to the Criminal Code of Ukraine in 2014, companies may be held liable, as may companies’ officers. However, economic crimes resulting in substantial damages or threat of public danger have not yet been listed as giving rise to the criminal liability of employees. In its turn, the AMCU imposes fines directly on undertakings.

Dealing with the enforcement agency

What are the practical steps for an immunity applicant or subsequent cooperating party in dealing with the enforcement agency?

A cartel participant applying for immunity must be first to report its participation in the cartel to the AMCU. In addition, the immunity applicant has to provide the AMCU with data of critical relevance for the case’s outcome. The applicant for immunity must cooperate with the AMCU as much as possible throughout the investigation. Moreover, a cartel participant cannot be exempt from responsibility and obtain immunity if it initiated concerted anticompetitive actions, ensured control over such actions or failed to provide the AMCU with all the data and evidence of concerted anticompetitive actions that it was aware of and was able to freely obtain.

Law stated date

Correct on

Give the date on which the information above is accurate.

6 November 2020.