Practice of the Constitutional Court of Ukraine with respect to state protection of competition in entrepreneurial activities

Abstract

This article aims to provide an overview of the practice of the Constitutional Court of Ukraine (the “CCU” or the “Court”) related to constitutional principles of state protection of competition in entrepreneurial activities, to determine the state of development of such practice and to analyse it.

The article provides a comprehensive analysis of the existing CCU’s decisions adopted following review of constitutional submissions, where issues related to state protection of competition were raised, the CCU’s positions set out in these decisions, as well as the CCU’s practice of considering constitutional complaints challenging constitutionality of certain provisions of Ukrainian legislation on protection of economic competition. System analysis of the CCU’s acts on the researched issues, Ukrainian legislation in force at the time of elaborating the article, and that in force at the time of adoption of relevant decisions by the CCU, as well as works of Ukrainian scholars relevant to the article’s objectives, were the main methodological basis for the research.

The analysis of the CCU’s practice on the researched issue does not allow for stating that it is very developed. Nevertheless, certain important issues have arisen before the CCU over the years of its activity. During the decade of 2000-2010, the CCU adopted a number of decisions clarifying the substantive content of constitutional provisions on state protection of competition, as well as outlining distribution of authorities between different branches of power in determining types and boundaries of monopolies, as well as in establishing competition rules. The period after 2010 has not yet been marked by adoption of remarkable CCU’s decisions on the researched topic.

Analysis of the CCU’s practice with respect to consideration of constitutional complaints shows their active use by business entities in order to challenge constitutionality of certain provisions of Ukrainian legislation on protection of economic competition. Despite the lack of success of such complaints to date, their contents and direction, which can be understood from relevant rulings on refusal to initiate constitutional proceedings, allow to identify problematic aspects of application of Ukrainian competition laws and define appropriate decisions to address them.