Abstract
Abuse of dominance cases and market structure studies constitute up to 42% of the activity of the national antitrust authority. This rate has a strong tendency to increase further. Meanwhile the concept of dominance applied in the competition policy relies majorly on structural factors and ignores dynamic considerations. There is however a large room for economic based approach in national competition law, such approach though is not always endorsed by the law enforcer.
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Notes
- 1.
The markets reported to be monopolized—12%; with oligopolistic structure—16%; with the signs of dominance—25%; meanwhile markets considered to have competitive structure constitute 47% (the AMCU official report, 2014).
- 2.
Due to 256 of Chapter 10 of the Association agreement between the European Union and its member states, of the one part, and Ukraine, of the other part (as ratified by Verkhovna Rada of Ukraine, i.e. national parliament, as well as by the European Parliament on 16.09.2014, the Law Of Ukraine № 1678-VII) Ukraine, inter alia, Ukraine shall approximate its competition laws and enforcement practices to the part of the EU acquis, namely, Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty; Council Regulation 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EU Merger Regulation); Commission Regulation 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices; Commission Regulation 772/2004 of 27 April 2004 on the application of Article 81 (3) of the Treaty to categories of technology transfer agreements.
- 3.
The Civil Code of Ukraine addresses the problem of abuse of civil rights through the framework of their exercise [Article 13 of the Civil Code of Ukraine].
- 4.
O.O. Bakalinska, Execution of right for fair competition and abuse of the individual right in commercial activity, Scientific review of Herson State University, Legal Sciences, 2014 pp. 215–218.
- 5.
Part 1, Article 13 of the Law of Ukraine On Protection of Economic Competition.
- 6.
Article 12 part 1.
- 7.
Though supply substitution seems disregarded in the context of market definition, being an integral part of overall case assessment, it is an initial step of analysis and shall integrate all potential market power constraints itself. We will address this issue in more detail below.
- 8.
Article 12 part 2.
- 9.
Article 12 part 3.
- 10.
Literarily, part 5 is terminated by reference to part 4 pointing out that “unless they prove no to be subject to the conditions established in part 4”.
- 11.
Market definition is conducted with regard to the Methodology for establishing of monopoly (dominant) position of the companies on the market (the Regulation of the AMCU as of 05.03.2002 # 49) and traditionally has three dimensions: product, geography and time. The product dimension (the pool of the substitutable products) is defined on the basis of substitution: 1). On the consumption level with regard to the characteristics of consumption, physical, technical, qualitative features, prices, and 2). on the production level with regard to the ability of suppliers to offer new products instead of the product in question. Though the assessment of demand side substitution always prevails over the considerations of potential competition and supply side substitution in enforcement decisions, it does not mean that there is no room for more proactive and economic grounded arguments, which can be raised by the parties.
- 12.
For example, the expertise of the objects of intellectual property rights, technical expertise, accounting (financial) expertise are addressed and regulated in details, while the economic analysis which can be conducted for the aims of competition issues studies is not specified. Procedurally it can be an issue of acceptability of the evidences and ultimately of the appointment of such type of the expertise by the court.
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Ivanytska, N. (2017). Ukraine. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Abuse of Dominant Position and Globalization & Protection and Disclosure of Trade Secrets and Know-How. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-46891-4_15
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DOI: https://doi.org/10.1007/978-3-319-46891-4_15
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