Comment Application of Competition Legislation. Practice of Ukraine, EU, Russia, and the USA

In October 2014 the All-Ukrainian Public Association for Resistance to Unfair Competition jointly with Arzinger Law Office published its comment Application of Competition Legislation. Practice of Ukraine, EU, Russia, and the USA. under the general editorship of S. Shklyar, President of ARUC, attorney-at-law, Dr. Jur., and N. Ivanytska, attorney-at-law, Dr. Jur., Senior Associate at Arzinger. The publication streamlines case law on competition in the national and foreign jurisdictions. It contains the key standpoints of antimonopoly agencies and courts on such issues as anticompetitive concerted practices, abuse of monopoly (dominance); mergers and concerted practices; protection from unfair competition.

The authors of the comment “Application of Competition Legislation. Practice of Ukraine, EU, EF, USA” proceeded from the fact that a summary of best practices of courts and offices in terms of competition laws would be important to make the law foreseeable and the logic of the competent authorities understandable.

Competition law has no real content without a study of its enforcers’ practice. The evolution of approaches, which can be observed in jurisdictions with a rich competition law history, proves that the improvement and liberalization of the State’s intervention into the economy through regulation of competitive relations require much time and effort.

Particularly, the settlement of court disputes in the field competition is related to the interpretation of laws containing assessment categories as well as collective and generalized criteria applied due to circumstance of economic nature. The task of courts in this regard is not only to follow the spirit and letter of the law, but to make decisions that are effective and reasonable in terms of economic laws.

Antimonopoly agencies often face a complex dilemma: to remain within the processed approaches and not to keep up with the technological progress determining the conditions of economic development and market functioning.

That is why the national enforcement experience shall be analyzed and systematized. It shall also be criticized so that mistakes are found and corrected, and gaps in the understanding of certain categories are filled by proven legal provisions.

The Ukrainian competition laws (the Law on Protection of Economic Competition and the Law on Protection against Unfair Competition) based on the German model of competition regulation, which, in turn, encompasses the European experience in the relevant filed. Therefore, it is reasonable and even necessary to apply to the European case law on competition to improve national approaches and avoid mistakes in law enforcement.

The authors did not go in for covering all of the law enforcement practice existing in Ukraine and worldwide, which would be impossible and, in our opinion, unreasonable. This comment is a summary of interesting court decisions by European, Ukrainian, and Russian courts as well as by the European Commission. It may be useful for understanding all types of disputes related to the category of cases where competition laws are applied.

This comment is intended for attorneys-at-law, judges, officers of the Antimonopoly Committee of Ukraine, lawyers, scientists, entrepreneurs, teachers and students of higher educational establishments.

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