On 22 February, the Government Decree No. 1104 supplementing Law of Ukraine "On Temporary Peculiarities of State Supervision (Control) in the Sphere of Business Activity" No. 1728-VIII (the Decree) was published. The Decree confirms the list of government agencies that are allowed to conduct "dawn raids", surprise on-site inspections, and planned audits despite the moratorium on inspections. The Antimonopoly Committee of Ukraine (AMC) is one of the agencies that gained immunity and may continue to call unexpectedly to detect and investigate competition law infringements.
According to the applicable competition laws, the AMC is empowered to conduct:
- planned inspections (with a prior notification), and
- unannounced inspections at company premises, i.e. dawn raids.
In the course of inspections, the AMC has extensive powers to search for evidence supporting their suspicions of misconduct on company premises and in vehicles, while private residences can also be subject to search if approved by a court. They also retain the right to request, examine and seize documents and other information, including confidential files or business secret files. They can make copies of documents and data or seize paper documents, material or electronic evidence. They can also search and make copies of a company's hardware and media storage, including email and document servers, PCs and laptops, hard drives, CDs, USB sticks, etc.
Historically, in 2014 the AMC conducted 217 inspections, which was four times less than in 2013. In the following years, according to the AMC's annual reports published on its official website, the AMC has scaled down its inspection activity by carrying out 87 inspections in 2015 and 118 inspections in 2016. Despite the fact that the figures for 2017 are not yet available, we know that the AMC continued to conduct its planned inspections and dawn raids. In line with the Decree, it will continue to do so in 2018.
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