Approximation of the Ukraine Competition Law with the EU Law
Table 2: M onopoly position of economic entities in the market37 Number of economic entities on the market
Market share which they occupy
Additional conditions to determine the monopoly position
≤ 35 %
the entity does not feel significant competition, in particular as a result of the relatively small size of the market shares belonging to competitors
> 35 %
the entity does not feel significant competition
≤3
> 50 %
≤5
> 70 %
this group of economic entities does not feel significant competition
1
The list of abuses of a dominant position in EU legislation covering such types of undertaking’s activities as: directly or indirectly imposing unfair purchase or selling prices, limiting production, markets or technical development to the prejudice of consumers, applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, etc.38 Although the list of abuse of entity’s monopoly position in the market under the Ukraine law39 is slightly larger than the list of abuses of a dominant position in EU, as a whole they form the standard list. And last important issue is connected with the control of concentration. In the EU this area is regulated by the Council Regulation № 139/200440. In Ukraine – by the Chapter V of the Ukrainian law on economic competition protection. The definition of concentration in Ukrainian competition law is approximated to the EU’s definition and covers mergers and acquisitions, but «Ukrainian law doesn’t distinguish between sole and joint control and it is not clear whether a change in the quality of control would constitute a concentration»41. The European Commission is empowered to examine all concentrations that are carried out on the scale of the EU and (aggregate worldwide turnover of all the undertakings concerned exceeds 5 billion euro; and the aggregate Community-wide turnover of each of at least 2 of the undertakings concerned exceeds 250 million euro). In Ukraine the notification is based on more less turnovers (worldwide turnover exceeds 12 million euro and turnover in Ukraine exceeds 1 million euro) and on market share (if market share of The law on economic competition protection 2001, Art. 12. Art. 102 of the TFEU. 39 The law on economic competition protection 2001, Art. 13. 40 Council Regulation (EC) № 139/2004 on the control of concentrations between undertakings (the EC Mergers Regulation), OJ L 24, 29. 1. 2004, p. 1. 41 Šišková, N. (ed.): From Eastern Partnership to the Association. A legal and political analysis, ibid, p. 261–262. 37 38
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