UKRAINE Law and Practice Contributed by: Denys Bugay, Volodymyr Vashchenko, Denys Shkarovsky and Oleksandr Lukianenko, VB Partners
• fixing prices or other conditions for the purchase or sale of goods; • distorting the outcome of auctions; or • significantly restricting competition. The constituent elements of the offence may be defined as follows. • Subject – a legal entity or its officers acting on behalf of the undertaking. • Object – economic relations within the market that ensure free competition. • Objective element: (a) concerted actions with other market partici - pants relating to prices, terms of sale, alloca - tion of markets or customers; (b) restricting participation in auctions; or (c) creating barriers for other market participants. • Subjective element – intent to achieve an anti-com - petitive effect and to obtain economic benefit. 2. Abuse of a dominant position – engaging in prac - tices that exploit a monopoly position in the market. The constituent elements of the offence are as follows. • Subject – a legal entity holding a dominant position in the market (market share as defined by law or by the Antimonopoly Committee of Ukraine (AMCU)). • Object – market competition and access to the market for other participants. • Objective element – deliberately creating obsta - cles for competitors, setting discriminatory prices, refusal to sell goods, limiting supply volumes, or other conduct that distorts the market. • Subjective element – intent to secure economic gain through the use of a monopoly position. 3. Failure to comply with AMCU decisions – non- implementation or partial implementation of decisions issued by the Antimonopoly Committee of Ukraine. The constituent elements of the offence are as follows. • Subject – a legal entity subject to an AMCU deci - sion. • Object – fulfilment of the requirements of the Anti - monopoly Committee.
• Objective element – failure, or only partial fulfil - ment, of the Committee’s decisions. • Subjective element – intent or conscious disregard of the obligation to comply with the decision. 4. Unauthorised concentration – mergers or acquisi - tions requiring AMCU approval but carried out without such approval. The constituent elements of the offence are as follows. • Subject – legal entities carrying out mergers or acquisitions. • Object – market structure and competition between undertakings. • Objective element: (a) implementation of a concentration without noti - fication or approval by the AMCU; or (b) acquisition of control over competitors in breach of the law. • Subjective element – intent to obtain advantages by unlawfully consolidating market power. 5. Submission of false information – providing incor - rect or misleading information to the AMCU or other authorities. The constituent elements of the offence are as follows. • Subject – a legal entity or its representatives. • Object – the AMCU’s activities in monitoring the market and ensuring competition. • Objective element – deliberate provision to the AMCU or other authorities of false data regarding prices, transactions, market shares, or production volumes. • Subjective element – intent to mislead public authorities with a view to evading oversight or liability. Sanctions for Violations Fines The maximum fine is 10% of the revenue from product sales in the year preceding the fine’s imposition. If the unlawful profit exceeds 10% of this revenue, the fine can be up to three times the amount of the illicit profit.
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