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Ministry of Justice of Ukraine

November 9, 2017

No. 1364/31232

ORDER OF THE ANTIMONOPOLY COMMITTEE OF UKRAINE

of October 12, 2017 No. 10-rp

About approval of Standard requirements to vertical coordinated actions of subjects of managing and modification of Standard requirements to coordinated actions of subjects of managing for general release from preliminary receipt of permission of bodies of the Antimonopoly Committee of Ukraine
(Extraction)

(as amended of the Order of the Antimonopoly Committee of Ukraine of 31.05.2018 No. 10-rp)

According to Item 11 parts three of Article 7, to article 13 of the Law of Ukraine "About the Antimonopoly Committee of Ukraine", "About protection of the economic competition" the Antimonopoly Committee of Ukraine decided parts two of article 11 of the Law of Ukraine:

1. Approve enclosed:

Standard requirements to vertical coordinated actions of subjects of managing concerning deliveries and use of goods.

Changes in Standard requirements to coordinated actions of subjects of managing for general release from preliminary receipt of permission of bodies of the Antimonopoly Committee of Ukraine to the coordinated actions of subjects of managing approved by the order of the Antimonopoly Committee of Ukraine of February 12, 2002 No. 27-r registered in the Ministry of Justice of Ukraine on March 7, 2002 for No. 239/6527.

2. To provide to department of competition policy submission of this order on state registration in the Ministry of Justice of Ukraine in accordance with the established procedure.

4. I reserve control over the implementation of this order.

Chairman of Committee

Yu. Terentyev

Approved by the Order of the Antimonopoly Committee of Ukraine of October 12, 2017 No. 10-rp

Standard requirements to vertical coordinated actions of subjects of managing concerning deliveries and use of goods

I. General provisions

1. These Standard requirements developed according to provisions of part two of article 11 of the Law of Ukraine "About protection of the economic competition" (further - the Law), determine requirements to coordinated actions of subjects of managing concerning deliveries and use of goods in the form of bilateral or multilateral agreements (agreements).

2. The terms used in these Standard requirements are accepted in the following values:

active sales - the sales performed by active search by the seller of individual customers;

vertical restrictions - competition restrictions, the stipulated in Article 6 Laws and caused by vertical coordinated actions of subjects of managing;

vertical coordinated actions of subjects of managing concerning deliveries and use of goods - coordinated actions in which two or more subjects of managing participate within such coordinated actions act on different levels of chain of production or delivery and which participants can buy, sell or resell separate goods (further - vertical coordinated actions).

Are not recognized vertical coordinated actions of the agreement of the order or commercial mediation (agency activities) if the attorney (the commercial agent) in connection with such activities does not bear or bears only insignificant commercial and/or financial risks.

Agreements of the order or commercial mediation (agency activities) are recognized vertical coordinated actions if the attorney (the commercial agent) in connection with such activities bears substantial commercial and/or financial risks, especially if he corresponds at least to one of the following conditions:

incurs expenses on delivery/purchase of goods (except for transportation expenses if they are compensated by the subject of managing who is represented by the attorney (the commercial agent));

shall incur promotional expenses of the subject of managing whom represents;

keeps at own expense or on own risk inventories of goods of the subject of managing whom represents (except for responsibility of the attorney (the commercial agent) for loss (shortage) or damage of such goods);

provides at own expense repair services or guarantee maintenance after sale of goods;

incurs extra charges on the equipment, rooms or personnel training (except as specified when such expenses are completely refunded by the subject of managing who is represented by the attorney (the commercial agent));

takes the responsibility to the third parties for the harm done to consumers by the sold goods (except for approaches at the attorney (the commercial agent) of such responsibility based on the legislation);

takes the responsibility for inability of buyers to pay goods (except for approaches of responsibility of the attorney (the commercial agent) for the negligence or failure to act);

incurs other expenses and risks in connection with measures, according to requirements of the subject of managing whom he represents, shall be accepted in the same goods market (except as specified when such expenses are completely refunded by the subject of managing who is represented by the attorney (the commercial agent));

selective system of supply - system in case of which the supplier shall sell contractual goods directly or indirectly only to the buyers selected on the basis of special criteria and in case of which these buyers not sell these contractual goods to buyers who are not determined by the supplier as participants of such selective system of supply, in the territory fixed by the supplier for functioning of this system;

exclusive (exclusive) delivery - system in case of which the supplier agrees to sell contractual goods only to the certain buyer within certain territory;

exclusive group of customers - group of customers to whom the supplier allows to perform sale of contractual goods only to the buyer determined by him or does not resolve sale to one buyer;

the exclusive territory - the territory within which the supplier allows to perform sale of contractual goods only to the buyer determined by him or does not resolve sale to one buyer;

the customer - the subject of managing who is not the party of vertical coordinated actions, but acquires contractual goods at the buyer who is the participant of vertical coordinated actions;

the obligation not to compete - any direct or indirect liability of the buyer not to make, not to acquire, not to sell or not to resell goods which compete with contractual goods, to acquire either any direct or indirect liability of the buyer at the supplier or at other subject of the managing determined by the supplier, more than 80 percent of all contractual goods and their substitutes which are acquired by the buyer, the corresponding contractual goods or their substitutes calculated on the basis of cost or (in cases of the settled economic practice) purchasing amounts of the buyer for the previous calendar year;

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