CONFIDENT VICTORY OF PP DEOL TRADE IN THE CASE OF THE ANTIMONOPOLY COMMITTEE OF UKRAINE

On 13 January, 2016 the Superior Economic Court finished the dispute between the Antimonopoly Committee of Ukraine (on behalf of the Kharkiv regional department) and PP Deol Trade. After multiple proceedings in different courts PP Deol Trade gained victory (the previous title – PP Okko Biznes).

We briefly recall the essence of the dispute. On 3 July, 2014 the regional department of the AMCU made a decision №158-r/k, which concerned violations of the law on protection of the competition in the economic sphere, which:

·      recognized that PP Deol Trade and other entities by similarly raising of retail prices of diesel by increasing trade allowances committed the violation of the legislation on protection of the economic competition provided by part 3 of Article 6, paragraph 1 of Article 50 of the Law of Ukraine “On protection of the economic competition” in the form of anticompetitive concerted actions (similar actions in the market of the retail sale of diesel fuel in the city of Kharkiv including suburban area bounded by the ring road, and taking into account gas stations located near the road that led to the restriction of competition, when the analysis of the situation on the market denies the existence of objective reasons for such operations).

·      fined PP Deol Trade 68 ths. hruvnas.

PP Deol Trade appealed this decision of the AMCU to the Kharkiv Oblast Economic Court, which recognized the actions of the AMCU as illegal, and the fine imposition as unreasonable because of the failure to prove the presence of violations by the plaintiff. The AMCU filed the appeal to the appellate court in Kharkiv, which upheld the defendant’s claim and the decision of the court of first instance.

The Courts established that the regional department of the AMCU incompletely elucidated circumstances. In particular, in the period of the investigation, PP Deol Trade hadn’t rented gas stations, hadn’t registered PPO, employees of gas station, and so on. Thus (!) – hadn’t implemented retail sale.

The Courts established that the regional department of the AMCU incorrectly defined the control of PP Deol Trade over PP Okko-Naftoproduct: PP Deol Trade didn’t control PP Okko-Naftoproduct, according to the commission contract PP Deol Trade transferred oil to the commissioner (PP Okko-Naftoproduct) for further retail sale. Moreover, the regional department prosecuted  PP Okko-Naftoproduct separately by its decision.

Also the Courts established that the Kharkiv regional department of the AMCU hadn’t fully investigated the specificity of the fuel market, which is stipulated by the high level of publicity, competition and the possibility of simply copying the price, which is why the price on gas stations is almost always similar, which in turn means a high level of correlation at any period, and in accordance with it the correlation coefficient wasn’t fixed for the determination of the difference between the investigation period and beyond it.

After checking the completeness of the investigation circumstances of the case prior judicial authorities, the Superior Economic Court of Ukraine concluded that there were no grounds for the settlement of the cassation appeal of the AMCU.

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