Antimonopoly legislation reform: AMCU’s political (in)dependence

The antimonopoly legislation reform is part of Ukraine’s obligations toward the European Community on the path to integration with the EU and toward the International Monetary Fund. But above all, Ukraine needs this reform because competition ensures overall economic efficiency and the best possible goods and services for consumers. Bill 5431 is key to reforming the Antimonopoly Committee of Ukraine (AMCU) and implementing the first stage of legislative reforms on protecting competition. In the reform’s second stage, changes in (1) the conceptual apparatus (concerted actions and dominant position and its abuse); (2) obligation regarding concentrations; (3) procedures for appointing State Commissioners; (4) creating a separate antimonopoly court; and (5) ensuring the institutional independence of AMCU  are fundamental.

In our opinion, one of the first steps in reforming AMCU’s work should be ensuring the Committee’s political independence. According to IMF memoranda of 2020 and 2021, one of Ukraine’s primary obligations is to provide “transparency, competitiveness, and protection from political interference in appointing and removing AMCU  chair and State Commissioners.” In turn, the Council Directive (EU) 2019/1 of December 11, 2018, says Member States should ensure that clear and transparent rules and procedures for the selection, recruitment, or appointment of the leadership of national competition authorities are laid down in national law. Today, the Verkhovna Rada has four draft laws regarding the procedures for appointing AMCU  chair, their deputies, and State Commissioners. These are:

• 2730, dated 01/14/2020, “On amending some laws of Ukraine regarding competition and antimonopoly reform” and alternatives bills (2730-1 and 2730-2, both dated 01/31/2020).
• 2151, dated 09/17/2019, “On amending the law ‘On the Antimonopoly Committee of Ukraine’ as regards personnel of the Antimonopoly Committee of Ukraine.”
• 3779, dated 07/02/2020, “On amending the law ‘On the Antimonopoly Committee of Ukraine’ as regards increasing the number of State Commissioners and securing the work of the appeals body” and alternative bill 3779-1 dated 20/07/2020, “On amending the law ‘On the Antimonopoly Committee of Ukraine’ as regards State Commissioners and aligning the law’s provisions with the Constitution of Ukraine.”
• 4122, dated 09/18/2020, “On amending some pieces of legislation on antimonopoly policy, de-oligarchization, and ensuring fair competition.”

Which of these can ensure the antimonopoly authority’s political independence? In the Box, we will explain this independence and how to secure it. We will further look at the changes in appointment and dismissal procedures proposed by the bills submitted to Parliament.

Appointing the AMCU chair

According to Article 85 of the Constitution of Ukraine, the AMCU chair is appointed by the Verkhovna Rada at the request of Ukraine’s Prime Minister. However, Article 9 of the law on the Antimonopoly Committee of Ukraine says the AMCU chair is appointed and removed by the President with the consent of the Verkhovna Rada of Ukraine. Therefore, the AMCU law should be brought in line with the Constitution. There should also be an open competition for the State Commissioner and AMCU chair positions. What do the bills propose?

As can be seen from Table 1, bill 2151 harmonizes AMCU  appointment procedures with the Constitution providing for an open competition. However, it does not include the process of forming a competition commission and holding a competition (which should be defined by the Cabinet of Ministers). Therefore, it is unclear what the businesses’ and the public’s involvement in the competition will look like in practice (however, the very idea of their participation is good). By contrast, even though bill 2730 describes the competitive selection process in much more detail, it does not eliminate the appointment procedure’s conflict with the Constitution. Bill 3779-1 introduces a constitutional appointment procedure but does not include the competition.

There are considerable differences between the draft laws regarding removing the AMCU chair (Table 2). In particular, bills 2730 and 2730-2 reduce AMCU’s independence, allowing the dismissal of its chairperson “on general grounds.” The grounds for dismissal are set out in most detail in bill 2151. However, those grounds certainly have to also include a clause on violating the “anti-oligarchic” law regarding declaring any contact with oligarchs or their representatives. At the moment, it is unclear how exactly this provision will work. Still, it is included in all laws defining activities of the state bodies, which oligarchs can theoretically influence. In our opinion, this provision will do more harm than good, but it is a topic for another discussion.

Appointing and removing AMCU’s State Commissioners (from which the first deputy and deputy chairperson are elected)

As can be seen from Tables 3 and 4, the procedures for appointing and dismissing State Commissioners (one of whom is the AMCU chair) are similar to those proposed for the chairperson. However, bills 2730 and 2730-2 introduce additional (in our opinion, unnecessary) restrictions on State Commissioners. Therefore, it is unclear why the law needs to specify the number of commissioners with economic or legal training and why it is impossible to elect commissioners having different training but relevant work experience. (Notably, about half of Ukraine’s workforce work in jobs unrelated to their educational background). Bill 2151 generally proposes to elect commissioners only from among those who already have AMCU experience, which significantly narrows the pool of potential candidates and turns AMCU into a “thing in itself,” i.e., a closed system. It is challenging to implement reforms in closed systems, even if they are needed. However, a positive feature of draft law 2151 is the transfer of powers to dismiss state officials from the President to the Verkhovna Rada, which will enhance the Committee’s independence.

Conclusions

None of the bills are perfect since they contain both positive and controversial proposals. We hope that while working on this reform, Parliament will be able to draft a bill that (1) will align the appointment procedures with the Constitution; (2) make dismissal more difficult by requiring parliamentary consent; (3) introduce an open competition for the State Commissioner and chairperson positions with the participation of the public; and (4) the candidate evaluation criteria will include not their formal training but relevant work experience.

With the support of