MISTAKES DURING APPELATION TO THE AMCU AND PRECLUSIVE TIME

In June this year (decision from 30/06/2016) the Dnipropetrovsk regional department of the Antimonopoly Committee of Ukraine recognized the actions of TOV ASS (Shyroke, Dnipropetrovsk Oblast) as the violation of the legislation on protection of the economic competition in the form of reporting the incomplete information and fined the company 13,600 hryvnas.

The company appealed to the Dnipropetrovsk Oblast Economic Court with a plaint to the Dnipropetrovsk regional department of the AMCU for the annulment and cancellation of its decision.

By the decision of the Dnipropetrovsk Oblast Economic Court from 06/09/2016 the bill of complaint and the pack of documents were regained to the company without consideration as TOV ASS haven’t sent the bill of complaint to the defender – the Dnipropetrovsk regional department of the Anti-monopoly Committee of Ukraine.

The complaint contain references on the evidences “directivity of the bill of complaint to the defendant”, but the major inspector of the Dnipropetrovsk Oblast Economic Court draw up an act on 05/09/2016 in accordance with which during stripping of the company’s letter with the bill of complaint delivered by express mail the failure to proof the directivity of it to the defender was detected.

By the decree of the Dnipropetrovsk Economic Court from 17/20/2016 the decision of the Dnipropetrovsk Oblast Economic Court was upheld.

By the decree of the Superior Economic Court of Ukraine from 13/12/2016 the decision of the Dnipropetrovsk Oblast Economic Court from 06/09/2016 and the decree of the Dnipropetrovsk Economic Court from 17/20/ were upheld, and the cassation complaint of TOV ASS was dismissed.

The reference of TOV ASS on the express way-bill, which was provided with the bill of complaint, was recognized by the court as unfolded because as a recipient in the way-bill was specified the Dnipropetrovsk Oblast Economic Court, not the Dnipropetrovsk regional department of the Anti-monopoly Committee of Ukraine.

According to part 1 of Article 56 of the Code of Commercial Procedure of Ukraine, while supplying a complaint, complainant, prosecutor are obliged to direct by a letter with list of enclosures the copies of bill of complaint and attached to it documents to the parties in accordance with the quantity of defenders and parties.

The documents, which confirm the directivity of the copy of bill of complaint and attached to it documents to the defender have to be attached to the bill of complaint. The judge return the bill of complaint and attached to it documents without consideration if the documents, which confirm the directivity of the copy of bill of complaint and attached to it documents, aren’t submitted.

With that, why we pay attention to this case?

Time limits!

Under the provisions of Article 56 of the Law of Ukraine “On protection of the economic competition” decisions and orders of the Antimonopoly Committee of Ukraine, heads of its regional departments are compulsory. The person on which the fine is imposed by the decision of the Antimonopoly Committee of Ukraine have to pay it within two months from the date of the receipt of the decision about the fine.

This time limit may not be renewed (!).

The period of the voluntary payment of the fine of TOV ASS expired in early September. At the end of the term TOV ASS submitted to the Economic Court the complaint, which eventually was returned to the company.

The time limits of the appellation to the bodies of the AMCU is preclusive and cannot be renewed. Remember about it during making the decision not to carry out the “verdict” of the AMCU and appeal it to court.

From the recent jurisprudence, case of PAT “Gazprom” and corresponding improper filling of the claim. During the consideration of the case related to the recovery of fine and penalty the representatives of PAT “Gazprom” decided to provide the materials and to express a position on the merits of the case, the time limit of which had already expired. so the court rejected submitted petitions.

In addition, we note the economic court did not take into account the arguments of the person in respect of whom the body of the AMCU made a decision (applicant, defendant, third party) about the illegality and / or invalidity of this decision if such arguments were stated after the deadlines established by part 2 of Article 47 and part 1 of Article 60 of the Law of Ukraine “On protection of the economic competition”, because the person did not use his/her right to appeal the act of the state body, and the course of stated term excludes the possibility of checking the legality and validity of the decision of the Antimonopoly Committee of Ukraine.

Thus, in the case of TOV ASS now is the turn of the Dnipropetrovsk regional department of the Anti-monopoly Committee of Ukraine to appeal for the recovery of fines and penalties.

So, you should take into account the preclusiveness of the time limits of the appellation of the decisions of the AMCU, when you are going to appeal the returning of your claims to courts.

 

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