On 25 March 2011 Regulation of Antimonopoly Committee of Ukraine (“AMCU”) “On approval of amendments to Rules of consideration of applications and cases on violation of legislation on protection of economic competition” (“Rules”) No. 84-p dated 14 February 2011 (“Amendments”) entered into force. The Amendments are aimed to improve the procedure for review and re-examination of cases on violation of legislation on protection of economic competition.
In comparison to the effective Rules of challenging AMCU decisions, the Amendments provide for more detailed regulation of the procedure and terms of challenging AMCU decisions.
One should distinguish between review and re-examination. Review is conducted by AMCU in the cases on violation of legislation on protection of economic competition and in the applications and cases relating to concerted practices. In addition to these, re-examination is conducted by AMCU in the applications and cases relating to concentrations. An application for review of AMCU decision may be filed with AMCU not later than within 2 months following receipt of such decision. In contrast to review, re-examination of AMCU decision may be conducted either within 3 or 5 years following the adoption of the decision and in certain circumstances even during the validity term of such decision depending on the grounds for respective re-examination.
Review of AMCU decisions
Amendments provide for the following requirements to the content of the application for review of AMCU decisions (the previous restatement of the Rules did not stipulate any such requirements in respect of the content of the application):
the decisions that the applicant expects to be adopted as a result of the review (in particular, to uphold the decision of the AMCU; to amend the decision; to annul the decision in part and to refer the case for new consideration in this part; to annul the decision and to adopt another decision or to refer the case for new consideration);
grounds for amendment or annulment of the decision of AMCU provided for in the Ukrainian competition legislation (these are: incomplete investigation of the circumstances which are significant for resolution of the case; failure to prove the circumstances which are significant for the case and which are deemed to be established; inconsistency between the facts and circumstances proven and the conclusions reached; violation or improper application of the rules of substantive or procedural law); and
proof evidencing the aforementioned grounds.
In addition, Amendments decreased the term for consideration of the application for review of AMCU decisions from 30 to 10 business days. Within this period AMCU must either accept the application or dismiss such application. Also, in contrast to the current Rules, Amendments provide that if the application does not completely satisfy all the requirements, AMCU may grant additional time to the applicant to amend the application in order to remove such deficiencies.
Other amendments aimed at ensuring prompt and efficient consideration of the application for review of the AMCU decisions are the following:
introduction of a 3-days term for written notification on acceptance of the application for review of AMCU decision of the persons participating in the case ;
introduction of a 2-months term for consideration of the application for review of AMCU decisions thereby limiting AMCU’s ability to abuse and unreasonably delay consideration of the application existing in the previously effective Rules, which did not provide for any time limits for consideration of the application at all; and
introduction of the requirement to suspend the consideration of the application if,
inter alia, the decision of AMCU on the matter was changed, annulled or recognized invalid according to the procedure established by law.
On the one hand, the recent Amendments have partly resolved one of the most significant deficiencies of the previously effective Rules, according to which both the court and the AMCU might concurrently consider the cases on the challenge (review) of AMCU decisions and, consequently, they might theoretically adopt conflicting decisions as a result of consideration of such cases.
On the other hand, Amendments do not completely resolve all the issues that may arise during the challenge of AMCU decisions in court proceedings together with simultaneous review of such decisions by AMCU. Moreover, Amendments also leave unresolved the situation where initially AMCU adopts a decision for the review of its own decision, and then a court adopts conflicting decision on challenging the same AMCU decision.
Therefore, the procedure of challenging (reviewing) AMCU decisions requires further improvement. In particular, it is necessary to provide for more comprehensive regulation of the issues relating to concurrent challenge of AMCU decisions in the courts and review of such decisions by AMCU.
Re-examination of AMCU decisions
In respect of the procedure for re-examination of AMCU decisions, Amendments introduce requirements similar to the requirements applicable to the procedure for review as to the content of the application for re-examination, the terms of its consideration, notification on acceptance of the application for re-examination, as well as similar requirements to the term of consideration of the application for re-examination.
At the same time Amendments successfully resolve the issue of challenging AMCU decisions in the court proceedings and their concurrent re-examination by AMCU. In particular, according to Amendments, re-examination may be suspended by AMCU conducting such re-examination, on its own initiative, or based on the application of a person participating in a case before AMCU until AMCU, court or other state body decides on the case or other issue connected with the re-examination proceedings.
Thus, Amendments should effectively resolve possible contradictions and conflicts, which arise in the course of challenging AMCU decisions in courts concurrently with re-examination of such decisions by AMCU.
Although the Amendments constitute important step in regulating the procedure for consideration and resolution of cases on challenging AMCU decisions, there still remain many contradictions and conflicts requiring additional clarification and regulation. In particular, currently AMCU decisions may be challenged in commercial courts under the Law of Ukraine “On Protection of Economic Competition” and in administrative courts under the Code of Administrative Procedure, which provides that disputes between individuals and legal entities with state authorities on challenging their decisions fall within the competence of administrative courts. In practice it results to the resolution of disputes on challenging AMCU decisions concurrently by administrative and commercial courts thereby creating potential legal uncertainty.