Judicial ex ante control over inspections of business entities by the Antimonopoly committee of Ukraine and its territorial offices: legislative shortcomings and ways to address them

This article examines legislative changes in the form of introducing judicial control over inspections of business entities by the Antimonopoly Committee of Ukraine and its territorial branches. These changes are aimed at preliminary judicial authorization of the regulator’s actions related to inspections and audits of business entities by the Antimonopoly Committee of Ukraine and its territorial branches. Such judicial authorization serves as an additional safeguard to determine whether there are real grounds for conducting such an inspection and taking the corresponding list of procedural actions as a result of such an inspection, such as seizure of property, sealing of premises, etc. It is determined that one of the objectives that the legislator sought to achieve by introducing the relevant amendments was to bring Ukrainian competition law and practice closer to the acquis communautaire of the European Community. In accordance with Article 256 of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other hand, ratified by the Verkhovna Rada of Ukraine on 16 September 2014, Ukraine has assumed the relevant obligations. It has been established that this course of development of the current legislation is undoubtedly correct and justified. The mechanism of judicial control over the legality of conducting inspections and performing procedural actions by antimonopoly authorities is examined using the example of Germany. In particular, it is determined that German legislation establishes mandatory judicial authorization for antimonopoly authorities in the event of a search on the territory of a business entity. A number of legislative shortcomings existing in the mechanism of judicial control over inspections of business entities by the Antimonopoly Committee of Ukraine and its territorial offices are highlighted, including: the inconsistency and illogical placement of Article 252-1 of the Commercial Procedure Code of Ukraine («Specifics of case consideration under simplified claim procedure upon motions of the Antimonopoly Committee of Ukraine, territorial office of the Antimonopoly Committee of Ukraine») into Chapter 1 of Section IV «Appeal Proceedings»; the uncertainty of the procedural status of case participants in this category of cases; the absence of the ruling issued as a result of considering the motion of the Antimonopoly Committee of Ukraine and its territorial offices for permission to inspect an business entity in the list of rulings provided for by Article 255 of the Commercial Procedure Code of Ukraine for separate appeal from the court decision; the lack of regulation regarding the determination of territorial jurisdiction (venue) in cases upon motions of the Antimonopoly Committee of Ukraine and its territorial offices regarding the inspection of business entities. A number of ways to address the identified legislative shortcomings, which are set out in the conclusions of this article, are also proposed.