Trends and prospects of investigating cases of anticompetitive concerted actions in the form of similar actions in the light of antitrust reform

The article analyzes the peculiarities of the qualification and application by the Antimonopoly Committee of Ukraine (AMCU) and the courts of the institute of «similar actions» (parallel behavior) as a separate form of anticompetitive concerted actions, prosecution for which did not require direct evidence of a violation and the standard of application of which was the economic analysis of the price situation in the market (correlation analysis). It has been established that the institution of «similar actions» has traditionally been used by the AMCU in seasonally volatile markets which are characterized by the oligopolistic structure of the market or the obvious price leadership of several key market participants (core of the market) the pricing strategies of which were adjusted by all other market participants. It is analyzed that despite the established approaches of the AMCU and courts in the application of the institution of «similar actions» in practice such a standard of proof of «cartel conspiracies» was often criticized by practicing lawyers and economists and generally did not meet the standards of proof of cartel conspiracies in the EU. Despite this as can be seen from the author’s analysis the use of the AMCU of the institute of «similar actions» generally achieved the goals of the state’s antimonopoly policy which was to suppress sharp price disturbances in certain socially sensitive markets including in the markets of electricity and oil products by initiating appropriate investigations of cases of violation of economic competition with subsequent prosecution of participants in «price cartels». The author analyzes the further conditions and prospects for the investigation of anticompetitive concerted actions in the form of parallel behavior based on the results of further harmonization of Ukrainian competition legislation with the EU competition rules during the second stage of antitrust reform which is designed to raise the standards of application of the institution of anticompetitive concerted actions (and investigation of cases of the corresponding category) with the simultaneous exclusion of the institution of «similar actions» from national legislation.