Peculiarities of assessment of Buyer Power in legal regulation of competition in the European Union and Ukraine

The article is devoted to the study of the main approaches to assessing buyer power in competition law of the European Union and Ukraine. The study was carried out on the basis of acts of primary and secondary law of the European Union, as well as the case law of the European Commission and the Court of Justice of the European Union. In addition, the article also analyzes the national legislation on the protection of economic competition and acts of “soft” law, as well as the case law of the Antimonopoly Committee of Ukraine, for the presence of sufficient tools for assessing buyer power through the lenses of Articles 12 and 13 of the Law of Ukraine “On Protection of Economic Competition”. The results of the study found that in the vast majority of cases, competition law enforcement in the context of dominance is aimed at investigating seller power, given the small number of cases considered in the European Union and Ukraine, the subject of which was the behavior of buyers. The main approaches used by the European Commission and the Court of Justice of the EU in assessing the buyer power are identified, and it is established that these approaches are essentially a reverse reflection of the traditional approaches used in examining the market position of the seller. In addition, the role of the definition of the concept of “undertaking” and the relevant market in the case of assessing buyer power through the lenses of Article 102 of the Treaty on the Functioning of the European Union is highlighted. It is revealed that the national legislation on the protection of economic competition provides for the liability of business entities that are buyers of a certain product for actions/inaction in the form of abuse of a monopoly (dominant) position, as confirmed by the law enforcement practice of the Antimonopoly Committee of Ukraine. In addition, the article analyzes the latest acts of the Antimonopoly Committee of Ukraine, the subject of which are issues related to the peculiarities of determining the relevant product market in the presence of signs of buyer power. The author emphasizes the further need to improve the national legislation of Ukraine by adopting a methodology for determining a monopoly (dominant) position, which would reflect modern approaches to determining and assessing buyer power and relevant product market with features of a monopsony or oligopsony structure.