Примусова однорівнева структура корпоративного управління як структурний засіб захисту конкуренції

Is it possible to use the compulsory implementation of effective internal control systems within a one-tier corporate governance structure as an effective alternative to antitrust regulation mechanisms such as concentration control (merger authorisation) and decisions on the compulsory breakup of corporations holding a monopoly (dominant) position in the market? Despite the relatively low level of legal scientific research on these issues, the trends towards strengthening competition protection will remain relevant both in the process of harmonizing national legislation with acquis communautaire and in the course of applying new legal norms. The author proposes to introduce the “compulsory one-tier corporate governance structure” as a structural presumption in antitrust law, which may be applied by the competent authority in the following cases. Firstly, as an alternative to the compulsory breakup of a corporation for antitrust violations. Secondly, as an additional mechanism introduced simultaneously with granting a corporation permission for concentration (merger authorisation). Proposed legal norms should foresee the establishment of a minimum number of independent non-executive members of the board of directors (both in quantitative and percentage terms), their election through an open competition procedure (competitive examinations), with the competent authority maintaining control over the adherence to this procedure. Taking these proposals into account, the definition of the term “structural presumption in antitrust law” should be reconsidered as measures that involve changing the structure of corporate governance through the establishment of an appropriate internal control system, reorganization (merger, accession, division, separation, transformation), asset disposal, including compulsory breakup. The research methods include legal-dogmatic, logical-legal and normative-conceptual. The application of all the aforementioned methods was combined. A normative-conceptual method is used to develop new approaches in legal regulation.