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Ministry of Justice of Ukraine

January 25, 2024

No. 123/41468

ORDER OF THE ANTIMONOPOLY COMMITTEE OF UKRAINE

of December 14, 2023 No. 22-rp

About approval of the Procedure for determination of the size of the penalty imposed for violation of the law about protection of the economic competition

According to Item "About the Antimonopoly Committee of Ukraine" and the paragraph of the ninth subitem 30 of Item 6 of the Section I of the Law of Ukraine of August 9, 2023 No. 3295-IX "About modification of some legal acts of Ukraine concerning enhancement of the legislation on protection of the economic competition and activities of the Antimonopoly Committee of Ukraine" the Antimonopoly Committee of Ukraine DECIDED: 11 parts three of article 7 of the Law of Ukraine

1. Approve the Procedure for determination of the size of the penalty imposed for violation of the law about protection of the economic competition which is applied.

2. To legal department () provide to Maksimenko A. in accordance with the established procedure submission of this order on state registration in the Ministry of Justice of Ukraine.

3. This order becomes effective from the date of its official publication.

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

Chairman of Committee

P. Kirilenko

 

It is approved:

First Deputy Minister of digital transformation of Ukraine

 

O. Vyskub

Minister of Finance of Ukraine

S. Marchenko

The chairman of the National agency on questions prevention of corruption

A. Novikov

Approved by the Order of the Antimonopoly Committee of Ukraine of December 14, 2023, No. 22-rp

Procedure for determination of the size of the penalty imposed for violation of the law about protection of the economic competition

I. General provisions

1. This Procedure determines the mechanism of calculation of the size of the penalty provided by parts two and the fifth article 52 of the Law of Ukraine "About protection of the economic competition" (further - the Law), parts one and the second article 21 of the Law of Ukraine "About protection against unfair competition", imposed for violation of the law about protection of the economic competition (further - violation).

2. In this Procedure terms are used in the following values:

the benefit received as a result of violation making - or intended to receive effects, positive for the defendant, in any form which the defendant directly or indirectly could as a result of violation making, namely: income (revenue) gained as a result of violation making losses or expenses which it could or intended to avoid as a result of violation making, increase in market share of the subject of managing in the market, receipt of benefits in the competition concerning other participants of the market, opportunity to perform influence on economic activity of other legal entities and/or physical persons - subjects of managing, opportunity to receive part of profit of other legal entities and/or physical persons - subjects of managing;

the extreme size of penalty - the maximum size of penalty which can be imposed for violation according to parts two and the fifth article 52 of the Law, parts one and the second article 21 of the Law of Ukraine "About protection against unfair competition";

the income (revenue) connected with violation - the total size of income (revenue) gained from the sales of products (goods, works, services) which happened to violation of the law about protection of the economic competition in the market in which violation took place and in the market (markets) which it influenced, for the period, during which violation continued; concerning the subject of managing - group of persons the income (revenue) is determined as the summary income (revenue) from sales of products (goods, works, services) connected with violation, all legal entities and/or physical persons entering into group which is recognized the subject of managing according to article 1 of the Law and on whom the penalty is imposed;

the initiator of the anti-competitive approved actions - legal or physical person subject of managing which the first suggested other legal entities or physical persons to take part in the coordinated actions having signs of anti-competitive;

the period during which violation continued, - term of the date of actual start of actions (failure to act) or the beginning of their identification by body of the Antimonopoly Committee of Ukraine (further - Committee) recognized as violation before date of their termination or if violation was not stopped, before date of creation by employees of Committee, its territorial department performing collection and the analysis of proofs on case, representation with preliminary conclusions;

the constraining effect - additional losses of the defendant which would do unprofitable for it and other persons making of violations in the future.

Other terms are used in the values given in article 1 of the Law.

II. Main approaches to determination of the size of penalty

1. Organa Komitet impose penalties on associations, subjects of managing:

legal entities;

physical persons;

groups of subjects of managing legal entities and/or physical person which according to article 1 of the law are recognized subjects of managing, the cases provided by part four of article 52 of the Law.

2. Penalties are imposed on subjects of managing, actions (failure to act) of which are recognized as violation.

If several legal entities and/or physical persons - subjects of managing are included into group which is recognized the subject of managing, the penalty is imposed on the subject of managing on behalf of legal entities and/or physical persons which:

the made acts (actions, failure to act) which led to violation by the specified subject of managing and/or

have the rights without which making of violation would be impossible, and/or

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