AMCU APPROVED A NEW METHODOLOGY FOR CALCULATING FINES FOR COMPETITION LAW INFRINGEMENT

AMCU APPROVED A NEW METHODOLOGY FOR CALCULATING FINES FOR COMPETITION LAW INFRINGEMENT

According to an announcement posted on the official website of the institution, on August 9, 2016 the Antimonopoly Committee of Ukraine (hereinafter – “AMCU”) approved new Recommendatory clarifications № 39-рр on the application of the provisions of the second, fifth and sixth paragraphs of Article 52 of the Law of Ukraine “On Protection of Economic Competition”, first and second paragraphs of Article 21 of the Law of Ukraine “On Protection against Unfair Competition” relating to the calculation of fines, which simultaneously repealed similar Recommendatory clarifications of AMCU as of 31.05.2016 № 26-рр. It is to be recalled that this is the fourth edition of Recommendatory clarifications of the methodology for calculating fines for breach of competition law, since September 15, 2015, when AMCU for the first time adopted Recommendatory clarifications of the methodology for calculating fines.

Among the key changes made to the methodology for calculating fines by the Recommendatory clarifications as of 09.08.2016, there can be outlined the following:

• AMCU changed the approach to determining the amount of the basic fine for violation of the largest, significant and moderate gravity, which will allow differentiating the amount of the basic fine depending on the characteristics of the violation. From now onward AMCU authorities in determining the basic fine will apply appropriate corrective coefficients (from 0.05 to 2) depending on the impact or possible impact of the identified violations on the related markets, social value of goods and the level of profitability of activities related to the violation.
• AMCU can determine the amount of the basic fine for violation of legislation on protection of economic competition on the basis of given by the offender reasonable calculation of the amount (in monetary terms) of improperly received by him rewards and/or losses (damages) of the person(s) whose rights have been violated as a result of committing the relevant violation of legislation on protection of economic competition.

In addition, it should also be noted that the new Recommendatory clarifications on application of provisions of the second, fifth and sixth paragraphs of Article 52 of the Law of Ukraine “On Protection of Economic Competition”, first and second paragraphs of Article 21 of the Law of Ukraine “On Protection against Unfair Competition” relating to the calculation of fines also contain provisions that allow the AMCU in exceptional cases (due to the need for proper deterrent effect) to determine the penalties greater than those provided by Recommendatory clarifications, but within the limits set in paragraphs 2, 5 and 6 of Article 52 of the Law of Ukraine “On Protection of Economic Competition”, paragraphs 1 and 2 of Article 21 of the Law of Ukraine “On Protection against Unfair Competition”. This is applicable, in particular, to the abuse that led to particularly negative effects on competition, interests of other economic entities, customers, and abilities of AMCU to carry out their tasks.

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This Legal Alert is intended as a general overview of latest changes in legislation of Ukraine and does not constitute a legal advice.

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