The course towards European integration poses a complex task for our state to carry out deep economic reforms, to create a truly functioning market economy. Meeting this challenge is directly dependent on the implementation of an effective competition policy, aimed at creation of a competitive environment, protection of the legitimate interests of entrepreneurs and consumers, increasement of competitiveness of a manufacturer in domestic and foreign markets.
Competition policy, harmonized among the countries of the European Union is one of the cornerstones of European integration. General rules for the regulation of competition issues were introduced in 1957, at the same time as the creation of the European Economic Community, which later transformed into the European Union.
Thus, in the Treaties of Rome as of March, 25, 1957 on the creation of the European Economic Community, which define the general rules of the Community, the Articles 85-99 regulate issues of competitive behavior of enterprises, dumping and state aid. In particular, Articles 85-86 of the Treaties of Rome determined the basic rules on the prohibition of cartels (concerted actions aimed at elimination of competition), abuse of a monopoly (dominant) position, and also identified their main types. These basic provisions are included in Articles 101 and 102 of the Treaty on the Functioning of the European Union.
According to Article 101, the Treaty on the functioning of the European Union prohibits as incompatible with the internal market all transactions between business entities, decisions of associations of business entities and concerted practices that may affect trade between Member States and the purpose or effect of which is to hinder, restrict or distort competition in the internal market. In particular, those that directly or indirectly set the purchase or sale prices or any other trading conditions; restrict or control production, markets, technical development or investment, divide markets or sources of supply; apply unequal conditions in equivalent transactions with other trading parties, thereby creating unfavorable conditions of competition for them; lead to the conclusion of treaties on the assumption of additional obligations which by their nature or according to trade practice, are unrelated to the subject matter of those treaties. One of the principles of EU competition policy is also the principle of merger regulation. The relevant norms are not directly established in the Treaties of Rome, but later the European Commission, as well as the practice of the EU court, proved the need to bring this issue to the supranational level. In 1989, Regulation No. 4064/89 was adopted, which provided for the receipt of a single authorization from the European Commission for mergers that by their scale could affect competition at the level of the entire Community. Later, this regulation was replaced by the Regulation 139/2004, which continued to improve mergers` control mechanism. Adaptation of Ukrainian legislation to EU rules and the implementation of the provisions of EU competition law to the law of Ukraine began almost immediately after gaining independence. Thus, the Law of Ukraine On Limitation of Monopolism and Prevention of Unfair Competition in Entrepreneurial Activities as of 1992 already provided for some provisions, generally similar in meaning to the provisions of EU competition law. The next stage of adaptation was the adoption in 2001 of the Law of Ukraine On Protection economic competition. This law reflects the principles of regulation of competition, which generally correspond to similar provisions of EU law. In particular, the wording regarding concerted actions (cartels) and abuse of a monopoly (dominant) position, the amount of fines for violations (up to 10 % from turnover) are coinciding to a large extent.
According to the results of the analysis conducted by the experts, it was noted that the comparison of competition law with the best international practices shows that the legal framework of Ukraine does not need radical changes.
However, signing of the Association Agreement between Ukraine on the one hand, and the European Union, the European Atomic Energy Community and their Member States on the other hand (hereinafter - the Association Agreement) requires further harmonization of Ukrainian competition law.
Chapter 10 of this Association Agreement is devoted to competition issues (Articles 253 - 261). Article 256 of the Association Agreement provides for further approximation of Ukrainian legislation to EU law and has a list of provisions of EU Regulations that need to be implemented into Ukrainian legislation. The changes envisaged in this list, even though not radical, are highly anticipated and important in some instances.
It should be noted that most of these activities are carried out with the involvement of international technical assistance: through the implementation of individual projects, through EU assistance instruments, such as EU technical assistance projects (including Twinning and TAIEX), as well as bilateral interagency cooperation with the competition authorities of the EU Member States.
Also, in order to bring the process of control over mergers in line with the EU norms established in the EU Regulation on the control of Concentrations 139/2004, as provided for in Section IV, Chapter 10, Articles 255 (6) and 256 (2) of the Association Agreement between Ukraine and the EU and technology exchange procedures in accordance with EU rules set out in Article 101 (3) of the Treaty on the Functioning of the EU and EU Council Resolution № 316/2014 as of 21.03.2014, the AMCU is developing appropriate amendments to regulations.