Restraint and counter- balance mechanism as well as position of envoy on procedural issues are required to efficiently investigate competition violations – experts

Restraint and counter- balance mechanism as well as position of envoy on procedural issues are required to efficiently investigate competition violations – experts
April 22, 2016.

Civic experts and management of the Antimonopoly Committee envisage the way to best address competition violations and make investigation more efficient. Legislative, procedural and structural changes are the key.

Kyiv, April 22, 2016. “Ukraine’s Antimonopoly Committee is a tool that is called to develop the economy, build trade relations as well as enhance de-monopolization and de-oligarchization,” said MP Viktoria Ptashnyk at the discussion at Ukraine Crisis Media Center. She said current investigation rules as to competition violations are outdated and require revision, new rules need to be written, fair and transparent investigations need to be conducted. She said she hopes that the draft law worked out by joint efforts will be considered, it is expected that the draft law will introduce positive changes.

Procedure for investigation of competition violations has to be settled at legislative level, said Oleksandr Voznyuk, member of the Board within the Committee on Competition Law at the Ukrainian Bar Association. “In order to guarantee that the process is just efficient system not dependent on employees needs to be in place. It should also guarantee that regardless of the system user the result is efficient and the decision is unbiased,” emphasized Voznyuk. One of the current problems is the fact that “whether the proof is sufficient decides whoever collects this proof.” Thus it is not possible to guarantee that the process is objective, preventive measures need to be applied. The Competition Law Committee member thinks leaving the functions in question in area of responsibility of one agency is the best option based on best practice of EU member states. “At the same time restraint and counter-balance mechanisms need to be immediately created within the system,” he said. One of the currently implemented mechanisms is hearings. Another one is introducing of the position of envoy on procedural issues – a person not linked to investigations and decision-making – an independent expert.

According to Oleksandr Zavada, Head of the Civic Council within Ukraine’s Antimonopoly Committee, apart from the above principles of restraint and counter-balance the Antimonopoly Committee needs to have additional powers. It includes own powers to get proof anywhere including in private accommodations. Zavada noted that it is in line with the European practice and that a respective law needs to be adopted for this purpose.

Maria Nizhnyk, First Deputy Head of Ukraine’s Antimonopoly Committee, noted that fair and efficient investigation will enable the consumers to get easy access to quality goods and services as well as competitive prices. Producers in their turn will get access to investment and will be able to cut their expenses. Transparent, adequate and predictable sanctions will come as a result of violations. Nizhnyk reminded that at the end of 2015 a draft law was worked out that foresees shortening of the terms for case consideration on violating economic competition rules. Moreover staff of the investigation department was reinforced and a new unit that studies economic analysis was created.

Representative of the NGO “Foundation for Sustainable Development of Ukraine” Serhiy Denysenko noted that in the context of investigating competition violations access to the cases is the primary issue of concern to business. Impossibility to study the proof at the pre-trial stage is what is implied. “It is a critical issue as it has to provide fair consideration and to prepare arguments in favor of respective position,” explained Serhiy Denysenko. Moreover clear timeframe needs to be established for cases under consideration.

“Ukraine’s Antimonopoly Committee numbers 600 employees, it is two times bigger than in Turkey or Germany and even three times more than in France. At the same time the annual budget of our agency is ten times less than in the above countries,” compared Marta Kuzmyn, senior economist at the Center for Economic Strategy; representative of the Reanimation Package of Reforms. She voiced the opinion that by decreasing the number of Antimonopoly Committee employees and keeping the budget at the same level will allow directing the money for increase of salaries and improving qualifications of staff. Kyzmyn also noted that there is a significant difference in the number of cases considered. Thus last year Antimonopoly Committee considered 500 cases, in Germany they were only eight. At the same time fines imposed on this type of violation are 100 times less than in Germany. That’s why legislative changes based on European practice need to be introduced. “Less cases for additional consideration and less number of staff employed with the Antimonopoly Committee is the target,” the expert says. The Committee’s work efficiency can be improved by stepping up the requirements for consideration of cases, added Kuzma.

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