Legal Framework for ensuring observance of rights of undertakings during inspections of The Antimonopoly Committee of Ukraine in the context of antimonopoly reform in Ukraine

The article is devoted to analysis and general description of legal framework for ensuring observance of rights of undertakings during inspections of the bodies of the Antimonopoly Committee of Ukraine (the “AMCU”), considering provisions of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Improving Legislation on the Protection of Economic Competition and Activities of the Antimonopoly Committee of Ukraine” No. 3295-IX dated 9 August 2023 (the “Law No. 3295-IX”), which initiated the antimonopoly reform in Ukraine. The article analyses the main changes introduced by the Law No. 3295-IX in terms of conduct of inspections of undertakings and certain procedural actions (seizure, arrest of property, etc.) by the AMCU’s bodies, and provides a general assessment of these changes from perspective of ensuring observance of rights of undertakings during exercise of investigative powers by the AMCU’s bodies. Following analysis of the above law, it is concluded that it significantly altered the rules for conducting inspections of undertakings and related procedural actions by the AMCU’s bodies and, in general, changed them for the better in terms of ensuring observance of rights of undertakings. The most significant positive development is that after entry of the Law No. 3295-IX into force (1 January 2024) inspections, access to premises, other possessions, other places of information storage owned and/ or used by undertakings, and/or performance of certain procedural actions in the form of examination, sealing, seizure of property, and arrest of property by the AMCU’s bodies should be subject to prior authorisation by the commercial court. The AMCU’s bodies, in turn, are required to provide sufficient justification of the need for inspections and the above-mentioned procedural actions, so that the latter could be authorised by the court. The need to obtain prior authorisation from the commercial court to conduct inspections of undertakings and procedural actions such as seizing, imposing arrest on property, etc. in theory should prevent unjustified interference of the AMCU’s bodies in operational activities of undertakings and contribute to ensuring observance of their rights to a greater extent compared to situation when commercial courts would continue to carry out only ex post control over legality of inspections of the AMCU’s bodies and their procedural actions. Time will show whether the above idea will find its practical implementation and to what extent. As the AMCU’s bodies utilize the investigative toolkit provided to them by the Law No. 3295-IX, time will also reveal imperfections and problematic aspects of the new legal regulation of inspections and procedural actions by the AMCU’s bodies in part of ensuring observance of rights of undertakings.