THE SUPERIOR ECONOMIC COURT PARTIALLY ENTERTAINED THE AMCU AND REFER THE CASE ON COMPANY FUDMARKET FOR A NEW TRIAL

On 08/11/2016, the Superior Economic Court of Ukraine accomplished the consideration of the cassation appeal of the Antimonopoly Committee of Ukraine on the decree of the Kyiv Commercial Court of appeal with regard to case on the suit of TOV Fudmarket.

Subsequent to the results of the investigation with regard to the case, which lasted for three years, the AMCU established that between TOV ASNilsen Ukraine (research company) and retail networks, including TOV Fudmarket, arose the information and data exchange on the substantive provisions of business activities fulfilment.

Retail networks were in treaty relations with TOV ASNilsen Ukraine concerning the receipt by TOV ASNilsen Ukraine of the information from retail networks on basic indexes of their work, and TOV ASNilsen Ukraine, in its turn, provided retail networks with marketing reports prepared subsequently to the results of processing of received and additionally assembled by them information, workshops, trainings, held by TOV ASNilsen Ukraine.

Taking into account the received information, TOV Fozzy-Fud, TOV Fora, PAT Furshet, DP Travers Market, DP Fud-Tsenter, DP Furshet Tsenter, TOV Ashan Ukraiina Hipermarket, TOV FUDMARKET, TOV ATB-Ukraiina, TOV EKO, TOV Adventis, PII BILLA-Ukraiina, TOV Krai-2, TOV Novus Ukraiina, PAT X 5 Retail Group Ukraiina, TOV Spar-Tsenter, TOV Mepromag, TV Metro Cash and Carry Ukraiina applied similar mechanisms for collaboration with suppliers resulting in commodity prices scaling, which are realised by retail networks to final customers, and what, in its turn, limited the competition.

Also, the AMCU found that retailers and TOV ASNilsen Ukraine exchanged the information and data on the substantive provisions of business activities fulfilment on such a level of detail, aggregating and actualization that it conduced the coordination of competitive behaviour on the market of services for retail trading arrangements in general stores mainly of grocery assortment in Kyiv, which leads to the limitation of competition.

Actions of the retailers and research company were recognized as anticompetitive concerted actions by the Antimonopoly Committee of Ukraine.

The fine for TOV Fudmarket tot up to 6,500,000 hryvnas.

The first instance supported the decision of the AMCU and dismissed the appellation of TOV Fudmarket.

In contrast to the position of the Kyiv Economic Court, the Kyiv Commercial Court of Appeal granted the appeal of TOV Fudmarket and recognized that including by retain networks of additional supplements connected with market promotion in contracts of delivery  is not uncommon for the market of food products sale in retail trade networks, in other words, it is specified by the specific of the corresponding goods market and cannot (without proved affiliation with other conditions) inviolately witness about anticompetitive behaviour.

The Superior Economic Court of Ukraine decided to partially meet the complaint of the AMCU, to cancel the decision of the Kyiv Economic Court and the Resolution of the Kiev Economic Court of Appeal and refer the case for a new trial, as given that the courts, in particular, haven’t checked the conditions on informal agreements and contacts between TOV ASNilsen Ukraine and TOV Fudmarket.

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