Abuse of a monopoly (dominant) position, concerted practices

Resolution of the Higher Commercial Court of Ukraine, dated October 31, 2006, case No. 8/278. Available at http://reyestr.court.gov.ua/Review/209675

In order to determine if a certain business entity has a monopoly (dominant) position within a market, it is not necessary to have all the features of the market power defined in clause 10.3. of the Methodology for determining the monopoly (dominant) position, but rather some of them, for instance, market shares held by competitors of this entity are relatively small.

Resolution of the Higher Commercial Court of Ukraine, dated July 13, 2016, case No. 924/1799/15. Available at http://reyestr.court.gov.ua/Review/58955277

In accordance with sub-clause 15.4 of the Resolution No. 15 of the Plenum of the Higher Commercial Court of Ukraine “On Certain Practical Aspects of Application of Competition Legislation”, dated December 26, 2011, the Ukrainian Antimonopoly Committee or its territorial divisions shall prove in court that a business entity holds a monopoly (dominant) position on the market. At the same time, based on Article 12 of the Ukrainian Law “On Protection of Economic Competition”, the business entity that denies holding the monopoly (dominant) position in the market must prove that it is exposed to considerable competition.

Resolution of the Higher Commercial Court of Ukraine, dated March 07, 2006, case No. 24/201. Available at http://vgsu.arbitr.gov.ua/docs/28_1200738.html

The seller (supplier) of goods shall be recognized holding a monopoly position in the market of goods within relevant territorial boundaries if change of the seller (supplier) of the goods is impractical for the buyer (consumer) because this change is impossible without significant economic costs or without changes in features and properties of the goods.

Resolution of the Higher Commercial Court of Ukraine, dated October 10, 2017, case No. 910/23952/16. Available at http://reyestr.court.gov.ua/Review/69478633

In order to qualify activities of a business entity as abuse of a monopoly (dominant) position it is not necessary to ascertain that the following consequences occurred: prevention, elimination or restriction of competition, biases against interests of other business entities (competitors, buyers) or consumers, in particular through causing them harm (loss) or other real violation of their rights or interests, but it is enough to ascertain that there is a likelihood of occurrence of the aforementioned consequences in connection with the respective activities of this business entity.

Resolution of the Higher Commercial Court of Ukraine, dated March 16, 2010, case No. 5/199-09. Available at http://reyestr.court.gov.ua/Review/8349119

It is the presence or absence of alternative sources of acquisition of goods precisely within the market in question should be a precondition for qualifying actions of a business entity as abuse of a monopoly position provided for in paragraph 5 of part two of Article 13 of the Ukrainian Law “On the Protection of Economic Competition”, but not the availability or absence of such sources in general.

Resolution of the Higher Commercial Court of Ukraine, dated December 26, 2006, case No. 12/30. Available at http://reyestr.court.gov.ua/Review/406033

Overpricing the value of orders – by an entity holding a monopoly (dominant) position in the market – because of unjustified inclusion into this value of the remuneration for actually not performed works, as well as the fact of charging twice for the same works is an abuse of a monopoly (dominant) position in the form of setting prices or other conditions for the sale of goods (services) that could not be established if there was significant competition in the market.

Resolution of the Higher Commercial Court of Ukraine, dated November 17, 2009, case No. 3/103-09. Available at http://reyestr.court.gov.ua/Review/6833007

Fixing and charging different fees (a fixed interest) for the service of registration of contracts by a commodity exchange depending on the price of an exchange-traded contract lawfully was found by lower courts to be an abuse of the monopoly (dominant) position in the relevant market.

Resolution of the Higher Commercial Court of Ukraine, dated July 30, 2009, case No. 5023/5448/12. Available at http://reyestr.court.gov.ua/Review/32756717

The demand of the business entity holding a monopoly (dominant) position in the burial services (cremation) market within the cemeteries and crematoriums owned by this entity for the acquisition of specific ritual accessories and related services as a precondition of entering into a contract with this business entity for the provision of burial services (cremation) is unlawful and may lead to harming interests of other businesses and consumers that would be impossible if there was significant competition in the market.

Resolution of the Higher Commercial Court of Ukraine, dated August 13, 2014, case No. 925/133/14. Available at http://reyestr.court.gov.ua/Review/40139830

Fixing by the business entity, not exposed to considerable competition in the petrol retail market (petrol stations), unjustified prices for high-octane gasoline by making a significant increase of the trade margin set against the decrease in acquisition costs is an abuse of the monopoly position in the market in the form of setting such product sale prices that would be impossible in case of the existence of significant competition in the market.

Resolution of the Higher Commercial Court of Ukraine, dated September 29, 2016, case No. 922/5614/15 . Available at http://reyestr.court.gov.ua/Review/61755300

Concerted practices can be evidenced by actions of various independent of each other entities with respect to the same type of circumstances while there are no objective reasons for such actions.

Absence of concerted practices can be supported by objective grounds for such behavior or by the fact that certain behavior was not stipulated by activities of others.

Given that, concerted practices are a model of group behavior of subjects comprising of repeated similar actions that are not caused by objective circumstances of the functioning of a certain field of economic activities, and this model replaces competitive relations with knowingly coordinated activities.