The Northern Interregional Territorial Branch of the Antimonopoly Committee of Ukraine (AMCU) fined Forma LLC and IBK Ukrbud LLC for bid rigging for the purchase of design works for the construction of the Podolsk bridge in Kyiv.
According to the press service of the Antimonopoly Committee of Ukraine, it was found that the companies coordinated their actions: they used common IP addresses for managing accounts and for tax reporting, acted simultaneously when receiving bank guarantees, etc.
Based on this, the Antimonopoly Committee of Ukraine recognized two companies as violators of the legislation on the protection of economic competition and imposed fines. In addition, violators are banned from participation in the auction for a period of three years.
According to Opendatabot, the owner of IBK Ukrbud LLC is Maksim Fomichov. The owner of Kyiv-based Forma LLC is Oleksandr Stepenko.
Both companies participated in the tender of the KP “Directorate for the Construction of Road Transport Facilities of Kyiv” in the “Prozorro” system for the purchase of design work for the construction of the Podolsk bridge in 2018. The winner of the auction was “IBK “Ukrbud” with an offer of UAH 11 million.
The Antimonopoly Committee of Ukraine (AMCU) may permit Gorky Agrofirm (Kyiv), part of the agricultural holding Ristone Holdings, to purchase Kosari distillery (the village of Kosari and the town of Smila, Cherkasy region), the right to which the company won at a privatization auction in November for UAH 162.88 million.
The state regulator considered the relevant issue at a meeting on December 30.
According to the website of the State Property Fund of Ukraine (SPF), the privatized asset consists of 1,360 names of buildings, structures, movable and other property, including an industrial building, a fermentation department, a granary and a distillery, a company store, a pig farm, warehouses, hangars, etc. The facility is equipped with basic technological equipment, as well as the necessary communications.
The enterprise is located on nine land plots with a total area of 75.74 hectares the village of Kosari and the town of Smila.
Ristone Holdings is an agricultural vertically integrated holding.
Ristone Holdings cultivates 65,800 hectares on the territory of Dnipropetrovsk, Kharkiv and Zaporizhia regions. It is engaged in the cultivation of grain and industrial crops, animal husbandry, production and wholesale and retail trade in agricultural products, in particular, flour, bread, bakery products, etc.
Privatization of the alcohol industry involves the sale by the State Property Fund of 41 distilleries of the state-owned enterprise Ukrspyrt and another 37 factories united in the Ukrspyrt concern. In total, it is expected to attract about UAH 2 billion. At the same time, in 2020, the amount of assets sold at 20 auctions amounted to UAH 1.26 billion.
The Antimonopoly Committee of Ukraine (AMCU) on Wednesday imposed a UAH 80.11 million fine on JSC Dniproazot, a monopolist in the liquid chlorine market, due to the suspension of its production and sale.
“The stopping of production of liquid chlorine by the enterprise during the period from June 18, 2018 to July 19, 2018 and the termination of its sale from July 1, 2018 to July 19, 2018 are recognized as abuse of a monopoly (dominant) position in the market for the primary sale of liquid chlorine,” the committee’s press release says.
According to it, the company argued that production was stopped due to a significant increase in a gas price and the lack of working capital, but the AMCU, following an investigation, claims that there were no significant changes in the weighted average prices for the purchase of natural gas by the company.
In addition, it was established that at the time of the stoppage of production, Dniproazot had circulating and credit funds available for current settlements with counterparties and conducting business activities.
The Committee believes that among the motives for stopping production was the company’s desire to resume legal relations with JSC Ukrnafta to obtain cheaper raw materials and the company’s intention to raise prices for liquid chlorine.
Following the case consideration, it was established that during 2017-2019, Dniproazot was the only enterprise that produced liquid chlorine in Ukraine, with market shares of 99%, 78% and 68%, respectively, the report says.
The AMCU also noted that since the maximum reserves of liquid chlorine at water utilities could not exceed 15-30% of the daily requirement, some of them found themselves in a crisis situation, since they had limited chlorine residues.
“During the period of Dniproazot’s downtime, meetings were held with the participation of government representatives, during which some water utilities warned about the threat of stopping the disinfection of drinking water… The technological process for purifying drinking water is continuous, so a delay in the reagent delivery could turn into an epidemiological catastrophe on a national scale,” the AMCU said.
The AMCU clarified that in July 2018, the price of goods sold by Dniproazot in tanks increased by 277%, in cylinders – by 133%.
The Committee noted that the issue of setting prices by the enterprise during 2017-2019 is being investigated in another antitrust case.
Dniproazot specializes in production of carbamide, ammonia, sodium hydroxide, liquid chlorine and hydrochloric acid and is controlled by the structures of Privat Group.
The Antimonopoly Committee of Ukraine has allowed PrJSC Vodafone Ukraine to concentrate more than 50% of the telecom operator Vega (Farlep-Invest).
According to a statement released on the AMCU website, the committee made such a decision following the meeting on Thursday.
“The aggregate shares of concentration participants in the involved regional markets do not exceed 11%. In all commodity markets involved in the concentration, except for the voice traffic termination services market, there are a large number of business entities, they are competitors of the concentration participants and offer consumers similar services,” the AMCU said.
According to the AMCU, the seller within the planned concentration is SCM Group, which also includes PrJSC Ukrtelecom.
Both of these companies own a frequency resource in the 2.3 GHz range (15 MHz in six regions), as well as in the 2.5-2.7 GHz range.
Vodafone Ukraine is the second largest mobile operator in Ukraine.
The national telecom operator Vega is part of the telecommunications division of Rinat Akhmetov’s SCM group. The operator offers complex solutions in the field of fixed telephony, broadband Internet access and data transmission. The company is present in 22 regions of Ukraine.
The Antimonopoly Committee of Ukraine (AMCU) has imposed a fine on Google LLC (99% owned by Google International LLC, the United States) in the amount of UAH 1 million for failure to provide information on time at the request of the state authorized representative of the AMCU.
As noted in the report on the website of the committee, such a decision was made by the provisional administrative board of the AMCU at a meeting on April 2.
“The size of the fine is determined by aggravating circumstances, namely by the fact that Google LLC has not provided the committee with the requested information for more than a year,” the report says.
This information was necessary for the AMCU to investigate the application of an individual entrepreneur regarding the blocking of his account in the Google My Business application.
The AMCU stressed that the failure of the respondent to provide information within a certain time frame makes it impossible for the committee to fulfill the tasks assigned to it, in particular, the timely, complete and comprehensive consideration of an application for violation of the legislation on protection of economic competition.
At the same time, it is noted that already within the framework of the consideration of the case initiated against the company for failure to provide information at the request of the committee, this information was provided by the defendant, which in turn was also taken into account by the AMCU when determining the amount of the fine.
“At the moment we are clarifying the details of this situation,” the press service of Google Ukraine commented to Interfax-Ukraine.
The findings of the Supreme Court, which allowed Tedis Ukraine to satisfy the cassation appeal against the Antimonopoly Committee of Ukraine (AMCU) and invalidate the fine of UAH 3.4 billion, will also significantly enhance the prospects of cigarette manufacturers to revoke the decision of the committee on fines, according to lawyers interviewed by Interfax-Ukraine.
“Speaking of other tobacco trials, it should be said that the Supreme Court’s findings on the inconsistency of the Antimonopoly Committee’s decision with the rules of prejudice and evidence can significantly enhance the prospects of cigarette manufacturers to overturn the Antimonopoly Committee’s decision,” Asters law firm partner Oleksiy Pustovit said.
He recalled that the Supreme Court had put an end to the Tedis Ukraine lawsuit against the Antimonopoly Committee, invalidating the committee’s decision incriminating anti-competitive concerted actions by Tedis and cigarette manufacturers Philip Morris International (PMI), JT International (JTI), Imperial Tobacco (IT) and British American Tobacco (BAT).
“The decision is important both in terms of influencing the law enforcement practice of the Antimonopoly Committee as a whole and in terms of changing the balance of power in ongoing similar litigation between cigarette manufacturers and the committee,” he said.
The lawyer called the Supreme Court’s decision “brief and capacious at the same time.” In particular, according to the lawyer, the most remarkable position is the illegality of the committee’s use of its decisions and recommendations in other cases as adjudicated. Many of the committee’s findings were not established or examined on the basis of evidence, as required by law, but were taken from other cases in which participants, markets and circumstances differed. In addition, the committee’s decision also contained elements of letters of recommendation as evidence in the case, which was closed without establishing any facts of violation of competition law.
“The Supreme Court concluded that the Antimonopoly Committee, citing other decisions, did not in fact investigate the market itself, which is decisive for any antitrust case, while other decisions dealt with other markets. The issue of the illegality of the committee’s use of its decisions in other cases as adjudicated was raised by the manufacturers and Tedis at the stage of consideration of the case by the committee. From a legal point of view, such an approach is tantamount to charges without some hard evidence,” he said.
The lawyer said that similar arguments were used in the claims of the tobacco manufacturers.
“Following the decision of the Supreme Court, courts will most likely follow the position of the illegality of the committee’s decisions and recommendations made in other cases as adjudicated, in other cases under manufacturer’s claims, which enhances the manufacturer’s chances of winning disputes with the committee,” Pustovit said.
In turn, partner of the Legal Alliance Andriy Gorbatenko reminded that the Antimonopoly Committee imposed a fine on tobacco companies due to the fact that with the entry of Tedis Ukraine (formerly Megapolis-Ukraine) in 2010, the number of cigarette distributors began to decline sharply and by 2013 Tedis Ukraine was the only distributor to which cigarette manufacturers supplied their products. Following the investigation, the committee concluded that this circumstance was the result of anti-competitive concerted actions that concerned the elimination of other distributors from the market or restriction of market access to them. In particular, the Antimonopoly Committee found that cigarette manufacturers had identified unfeasible selection conditions for distributors, which even Tedis Ukraine did not meet.
However, the lawyer said that “the unfortunate decision of the Antimonopoly Committee does not contain exhaustive evidence that would unequivocally answer this question,” and the Antimonopoly Committee did not provide evidence of consistency between the actions of cigarette manufacturers and Tedis Ukraine.
“Could this decision of the Supreme Court be the basis for reversing the decision of the Antimonopoly Committee and some cigarette manufacturers? Definitely, yes. Given the position set out in the decision of the Supreme Court, the accusation of the Antimonopoly Committee in this case is as follows: there seemed to be some agreement to establish barriers for other distributors to enter the primary cigarettes market, but it is not clear who agreed on this and with whom and it does not mean that the conditions established as a result of such an agreement (if any) could really create a barrier,” the lawyer said.
Gorbatenko also said that “the rest of the charges are based on evidence that cannot be used because it was collected in other investigations.”
“The probability that the Antimonopoly Committee’s decision regarding the accusations against the manufacturers will be backed by courts is akin to the probability of meeting an alien mind. Of course, there is a chance, but everyone will be very surprised if it really happens,” the lawyer said.
“We just have to hope that this decision of the Supreme Court will not only bring disappointment to the Antimonopoly Committee, but will also be an incentive for more thorough investigations and preparation of decisions, possibly in relation to Tedis Ukraine,” Gorbatenko said.
In turn, the American Chamber of Commerce in Ukraine reminded that “the rule of law and fair justice is one of the strategic priorities identified by the American Chamber of Commerce in 10 steps for Ukraine’s economic recovery and growth in 2021.”
The Chamber, in particular, notes the need for transparent and fair litigation, as companies have expressed concern that they have not been given full access to the evidence on which the Antimonopoly Committee’s allegations are based, and that insufficient attention was paid the companies’ arguments during the trial.
“Such high-profile disputes usually attract a lot of attention from the international community and can have an extremely negative impact on Ukraine’s image among foreign investors. A quick, transparent and fair solution will help maintain business relations between strategic investors and the state, not damage Ukraine’s reputation and investment climate and avoid losses for the budget,” President of the American Chamber of Commerce in Ukraine Andy Hunder said.
