Article title Definition of a Group of Undertakings in Competition Law Enforcement
Authors

Doctor of Law, Merited lawyer of Ukraine Founding partner, attorney – at - law Arzinger Law Firm

 (Kyiv, Ukraine) ORCID ID: https://orcid.org/0000-0003-2351-0161 sergii.shkliar@arzinger.ua

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 11/2021
Сторінки [103-114]
Annotation

The effective enforcement of the rule of law by the regulatory body in its decisions and their remaining in force after a court review is inextricably linked with the legislative structures and their correct interpretation. Ukrainian legislation on the protection of economic competition is relatively new and is still gaining ground, and, therefore, some problematic issues of its application are identified only after a certain period of enforcement. One of such issues is the accuracy of the definition of the term “group of undertakings”, as interpreted by the Antimonopoly Committee of Ukraine as well as its application by courts in cases in which undertakings are brought to justice. Despite the fact that certain studies have been conducted in the area, currently there can be observed the lack of comprehensive research in this area, especially that which would include the analysis of the relevant practice of the European Commission.

The aim of this article is to encourage legislative changes, the uniformity of practical law enforcement and further research and analysis of the practice of EU competition law. The need for legislative changes is reinforced by the opportunity to change approaches to law enforcement, introduce modern methodologies, and bring the legislation of Ukraine more in line with the legislation of the EU.

The study is based on the analysis of changes in the doctrine of a single economic entity in the European Union, as well as on the comparison of the legislative term “group of undertakings” with modern realities and the change in the approach of the Antimonopoly Committee of Ukraine in its decisions and guidelines. Identification of law enforcement issues was carried out by way of analyzing the decisions of the Antimonopoly Committee of Ukraine in comparison with case law.

 The study found that in the legislation the description of the ‘group of undertakings’ term was incomplete and the concept itself was narrowed down and interpreted in a variety of ways in the application and calculation of fines. Such multiplicity and inaccuracy of definitions influences the effectiveness of the regulator, the decisions of which likely do not withstand further judicial review, and this requires uniformity in law enforcement. The conducted study shows the relevance of the issues highlighted, the need for legislative changes as well as further research in the area of bringing to justice a group undertaking for violations of legislation on the protection of economic competition. The basis for further research should be current EU law enforcement practice.

In order to overcome the highlighted problems, the legislative changes and/or the provision of explanatory guidelines on this issue are proposed, which will set the direction of the vector of law enforcement of the Antimonopoly Committee of Ukraine.

 

Keywords group of undertakings; single economic entity; decisive influence; control; Antimonopoly Committee of Ukraine; anticompetitive concerted actions; concentration
References

Bibliography

Authored books

1. Vovk T, Peremot S, Systema konkurentnoho zakonodavstva Yevropeiskoho Soiuzu. Pravove rehuliuvannia pravyl konkurentsii v Ukraini. Shliakhy adaptatsii zakonodavstva Ukrainy (Triumf 2006) (in Ukrainian).

 

Edited books

 2. Shrʹoter H, Zakon Ukrayiny “Pro zakhyst ekonomichnoyi konkurentsiyi”. Komentar na osnovi porivnyalʹnoho analizu z pravylamy konkurentsiyi Yevropeysʹkoho Soyuzu (AlfaPraim 2006) (in Ukrainian).

 

Journal articles

3. Shvydka T, ‘Pravovi mekhanizmy prytiahnennia do vidpovidalnosti za antykonkurentni uzghodzheni dii (novely v zakonodavstvi)’ [2018] 6 (1) Naukovyi visnyk publichnoho ta pryvatnoho prava (in Ukrainian).

 

Theses

4. Smyrnova K, Pravovyi poriadok konkurentsii v Yevropeiskomu Soiuzi (dys d-ra yuryd nauk, 2015) (in Ukrainian).

 

Websites

5. Bondarev T, Shkliar S, Diakulych O, Hutnik I, ‘Shtrafnii dyskretsii AMKU povernuly ramku’ (Yurydychna hazeta online, 01.03.2021) <https://yur-gazeta.com/publications/ practice/antimonopolne-konkurentne-pravo/shtrafniy-diskreciyi-amku-povernuliramku. html> (accessed: 14.11.2021) (in Ukrainian).