PHARMACEUTICAL COMPANY REFERENCE ON HAGUE CONVENTION DURING REFUSAL TO SUBMIT THE INFORMATION UNDER THE AMCU REQUESTIS RECOGNIZED BASELESS

On December 27, 2016 the AMCU fined company F. Hoffmann-La Roche Ltd. (Switzerland, CH-4070 Basel, st. Hrenzahershtrasse 124) for the violation of the law on the protection of economic competition in the form of failure to provide information to the Antimonopoly Committee of Ukraine under the request of the AMCU Authorized Government official.

As a part of the proceedings the Authorized Government official sent a request to F. Hoffmann-La Roche Ltd., in which stated that the Committee has information about special aspects in Swiss law related to the reporting of data by Swiss companies to public authorities of foreign countries, in particular, that to provide the information under the request of the Antimonopoly Committee of Ukraine Companies must apply to the Federal Department of Economy, Education and Science of Switzerland to receive a permission for the disclosure of information by a resident of Switzerland under a request of a public authority of other jurisdiction.

Citing on the Hague Convention, the Company reported to the Committee about their willing to act in an official manner which provides a special procedure for the delivery of official documents within the Ministry of Justice of Ukraine, and also they don’t intend to apply to the Swiss authorities for authorizing the disclosure of the requested information under the request of the Authorized Government official of the Committee.

In a related move, the Anti-monopoly Committee of Ukraine has sent an application to the Ministry of Justice of Ukraine about granting of the official interpretation concerning the procedure of delivery and disposal of requests of the Authorized Government official of the Antimonopoly Committee of Ukraine on the territory of Switzerland amid the Hague Convention accomplishment.

The Ministry of Justice of Ukraine reported that among the Hague Conventions, the execution of which corresponds to the Ministry of Justice of Ukraine, only the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 provides a mechanism for transferring documents abroad for further delivery.

This Convention acts toward Ukraine and Switzerland, though concerns the international cooperation of courts, which hear civil or commercial proceedings, and is used for the implementation of Article 415 of the Civil Procedure Code, Article 125 of the Commercial Procedure Code, Article 115 of the Code of Administrative Procedure. Also in its letter the Ministry of Justice of Ukraine noted that according to the explanations prepared by the Hague Conference on Private International Law, and according to the report about the meeting of the Special Commission concerning the activity of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters from November 15, 1965, which was held on November 21-25, 1977 extrajudicial documents comprise documents which are not directly related to the trial, but must come from the body or the Registrar. Put in other words, provisions of Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 are beyond the use while performing authorized power by the bodies of state power.

Thus, the reference of F. Hoffmann-La Roche Ltd. on the Hague Convention and the Committee’s violation of necessary procedures of the dispatch of official documents as a justification of failure to provide information on demand by the Authorized Government official of the Committee is baseless.

Company F. Hoffmann-La Roche Ltd. provided the information beyond the period set by the Authorized Government official of the Committee, and after receiving the submission of the preliminary findings on the case, and reported that “there was no answer on the request, because they incorrectly though that the Committee violated corresponding procedures of the dispatch of official documents under the Hague Convention”.

The penalty for the violation of the law on the protection of the economic competition amounted to 108,000 hryvnas.

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