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Twinning Fiche EU Funded Project TWINNING TOOL ANNEX C1: Twinning Fiche Project title: Support to the Antimonopoly Committee of Ukraine in further approximation of legal, procedural and case enforcement practices with EU antitrust and merger control practices Beneficiary administration: Antimonopoly Committee of Ukraine (AMCU) Twinning Reference: UA 19 ENI FI 02 19 Publication notice reference: EuropeAid/166758/DD/ACT/UA EU funded project TWINNING TOOL 1 ABBREVIATIONS AA EU–Ukraine Association Agreement AMCU Antimonopoly Committee of Ukraine BA Beneficiary Administration BC Beneficiary Country DCFTA Deep and Comprehensive Free Trade Area EBRD European Bank for Reconstruction and Development EU European Union EUD EU Delegation ENPI European Neighbourhood and Partnership Instrument LAMCU Law of Ukraine “On Antimonopoly Committee of Ukraine” of 26.11.1993 No 3659-XII with further amendments LPEC Law of Ukraine “On Protection of Economic Competition” of 11.01.2001 No 2210 -III with further amendments LPUC Law of Ukraine “On Protection against Unfair Competition” of 07.06. 1996 No 236/96 with further amendments MS Member State (of the EU) NCA National Competition Authority OECD Organisation for Economic Co-operation and Development PL Project Leader PSC Project Steering Committee RTA Resident Twinning Adviser HRM Human resource management STE Short Term Expert ToR Terms of Reference UA Ukraine UNCTAD United Nations Conference on Trade and Development 2 1. Basic Information 1.1 Programme: Technical Cooperation Facility 2019 (ENI/2019/041-718, direct management). For applicants from the United Kingdom: Please be aware that eligibility criteria must be complied with for the entire duration of the grant. If the United Kingdom withdraws from the EU during the grant period without concluding an agreement with the EU ensuring in particular that British applicants continue to be eligible, you will cease to receive EU funding (while continuing, where possible, to participate) or be required to leave the project on the basis of Article 12.2 of the General Conditions1 to the grant agreement. 1.2 Twinning Sector: Finance, Internal market and Economic Criteria 1.3 EU funded budget: EUR 1,200,000 2. Objectives 2.1 Overall Objective(s): The overall objective of the Twinning project is to increase effectiveness, transparency and consistency of the competition policy in Ukraine on the basis of closer alignment with the EU competition framework, as required by AA/DCFTA. 2.2 Specific objective(s): To ensure further alignment of the Ukrainian economic competition legislation with the EU competition laws in the field of antitrust and merger control. To improve the institutional capacity of AMCU for competition law enforcement and competition advocacy. 2.3 The elements targeted in strategic documents i.e. National Development Plan/Cooperation agreement/Association Agreement/Sector reform strategy and related Action Plans This action will contribute to the achievement of the trade related objectives, in particular free and undistorted competition, as set out in Chapter 10, Title IV of the AA. It will also support the completion of the Ukraine-2020 Strategy with regards to the business and regulatory climate improvement and will disclose the future priorities for the national economic competition policy strengthening as part of post-2020 national economic reform strategies. 3. Description 3.1 Background and justification: The EU has been actively supporting the enhancement of the Ukrainian competition system for the last decade. This support intensified with the signature of the AA/DCFTA. Chapter 10, Title IV of the AA specifies competition-related cooperation 3 principles and recognises the AMCU as the national competition authority of Ukraine responsible for enforcement of the competition law in a transparent, timely and non- discriminatory manner, whilst respecting the principles of procedural fairness and the right of defence. In recent years Ukraine has made progress in approximating its national competition law to that of the EU as mandated by the AA. However, more legal approximation work needs to be done. And more importantly the enforcement and procedural practices at AMCU need to be significantly overhauled, to follow the EU NCA standards. The EU MS administration(s) will help achieve these goals, and will also assist AMCU to establish a strong public outreach and advocacy frameworks to more strongly position itself nationally and internationally. The AMCU performs its activities in accordance with the Constitution of Ukraine, the LAMCU, the LPEC, the LPUC, and other laws and legal acts adopted in accordance with these laws. The LAMCU defines the AMCU as a public authority with special legal status: it is a council, consisting of the Chair and eight State Commissioners. The AMCU Chairperson is appointed and dismissed by the President of Ukraine after approval by the Parliament (Verkhovna Rada of Ukraine) for a term of seven years. The AMCU Commissioners (including a First Deputy and a Deputy-Chair) are also appointed by the President of Ukraine for a seven years term upon nomination by the Prime Minister based on the AMCU Chair’s proposals. The AMCU is supervised by the President of Ukraine and reports to the Verkhovna Rada (the Parliament) in the form of annual reporting on the AMCU activities. The AMCU has special powers in competition law enforcement and in the development of the national competition policy. These competences are specified in Article 7 of LAMCU as activities focused on: i) control over compliance of undertakings and public administration bodies with the competition laws of Ukraine; ii) prior control of concerted actions (restrictive agreements) by undertakings; iii) merger control; iv) development and implementation of the national competition policy; v) competition advocacy and methodological support in application of competition law. The AMCU also has other important functions, prescribed in more detail in special legislative acts, in particular as public procurement appeal body, and the national state aid monitoring and control authority. The LPEC contains a standard set of rules contained in most antitrust acts (i.e. prohibition of concerted practices and anticompetitive agreements between undertakings; prohibition of the abuse of a dominant position in the market and merger control). It also contains provisions establishing control over anti-competitive decisions by pubic authorities, by local self-government and public administrations. LPEC was amended in 2015 to simplify the procedure to notify mergers, calculation of turnover with regards to merger control as required in Council Regulation (EC) 139/2004); procedures for pre-notification consultations; simplified procedure for prior approval of some concentrations of undertakings as per Commission Notice 2013/C 336/04; revision of deadlines for AMCU's final decisions on notified mergers. The LPEC is primarily aimed at establishing a fair and pro-competitive environment for doing business in Ukraine and protecting consumer welfare. Another related law – LPUC – is designed to establish administrative safeguards against the illegal use of trademarks, misleading advertising and packaging, unfair hindrance of business through unlawful and unfair business practices. The AA does not require dedicated approximation but requires that competition legislation needs to be built on solid principles. The AMCU is however committed to take EU competition law as a reference. 4 In early 2019, a comprehensive gap analysis of the Ukrainian competition laws and practices was carried out, in order to identify principal non-conformities between the Ukrainian laws and EU acquis communautaire. In particular, the gap analysis revealed significant differences in approaches of the Ukrainian laws to concerted actions and dominance which have deeply influenced jurisprudence which has developed over years in a direction different from the EU case law. The results of the gap analysis will serve as a useful guidance in further amendments of the Ukrainian competition laws and secondary legislation with the purpose of bringing them in line with the EU acquis. At the same time, competition policy cannot be successful only through the alignment of the national legislation with international standards. The enforcement priorities and procedures must be robust and transparent in order to generate trust and understanding with the private sector, improve quality of decisions and, more generally, foster a culture of competition across all levels of Ukrainian society. To this regard, the AMCU staff requires further qualification raising, which may be achieved by attending competition- related international events. In Ukraine, enforcement of the competition laws has been hindered by overcomplicated judicial procedures (which prescribe a de facto two circles of 3 level court proceedings before initiation of formal execution of the AMCU decisions becomes possible), lack of effective safeguards against avoidance of compliance with the AMCU decisions (e.g., through reorganization or getting rid of assets by the respondent undertakings), ambiguous laws and practices (jurisprudence) on the concept of a group of companies as a single economic entity; vagueness of provisions on the standard of proof and reliability of evidence. Additionally, in view of the lack of rules of prioritization, AMCU is overloaded with small and insignificant cases distracting its resources from more serious competition infringements. All these issues are to be effectively addressed
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