Draft Law on Improvement of AMCU Activities Restricts a Right to Defense: Proposals of the UBA Committee


KYIV - September 17, 2021. The UBA Committee on Competition Law addressed the Chair of the Antimonopoly Committee of Ukraine Olga Pishchanska. The appeal expresses gratitude to the AMCU for consideration and implementation of some of the remarks and proposals of the UBA Committee to the draft law No5431, namely regarding:

- removal of provisions on inspections at places of residence and other possessions of individuals, which did not provide a comprehensive settlement of legal relations related to the implementation of the AMCU of such powers, and created preconditions for violation of rights and freedoms of individuals;

- identification of signs of concentration in the creation of a full-fledged business entity with two or more business entities, which will independently carry out economic activities for a long period.

The UBA Committee also expresses its concern in the appeal, as important proposals were not taken into account, namely regarding:

- preventing the application of the discharge program to the initiators and organizers of anti-competitive concerted actions, because the introduction of such leniency contributes to a greater number of anti-competitive concerted action initiatives;

- proper regulation of the rights of persons involved in cases and the establishment of guarantees of observance of such rights, including ensuring a fair balance between the right of a person to defense and the right of others to the confidentiality of information; ensuring the right of a person to secrecy of consultations with a lawyer;

- preserving the right of legal entities and individuals, in particular consumers, who have suffered losses by anticompetitive concerted actions and abuse of monopoly position, to compensation for such losses in double amount, as the proposed changes, given the lack of regulation of legal relations and its practical complexity, in fact, they will eliminate the incentives of victims to such compensation, which will make the right to compensation declarative, and as a result of reducing the risk of property liability of potential violators will contribute to the commission of such violations.

We would like to emphasize that the Competition Law Committee does not support a number of new changes, which are highlighted in the appeal. The proposed changes are a major step backwards the declared reforms, they restrict the individual’s right to defense and fail to meet Ukraine’s commitment to move towards respect for the principle of a fair trial and guarantee an effective right to defense.

In order to assist the AMCU in settling the law, the Competition Law Committee of the Ukrainian Bar Association has proposed to state Article 40 in new edition.

Full text of the appeal is available by the link (in Ukrainian).