THE ANTITRUST TREATMENT OF ELECTRICITY MARKET OF UKRAINE: CONUNDRUM WITH THE CONCEPT OF COLLECTIVE DOMINANCE AND EU EXPERIENCE

Abstract

The main purpose of the article is to provide comparison research of collective dominance doctrine and practice in the EU and the enforcement practice in Ukraine. Methodology. The paper focused on the compliance of AMCU’s analysis of national electricity market in Ukraine with the European law enforcement practice that arises from the international legal obligations of Ukraine to use in its practice the EU competition rules according to Article 18 of the Treaty establishing the Energy Community and taking into account the criteria of interpretation in accordance with the EU case law. Article 255 of the Association Agreement between Ukraine and the EU that clearly provides the principle of transparency, non-discrimination, and neutrality in compliance with the procedures of the procedural justice and the right of defence also indicates a special actuality of the carried-out research in this field. The main practical impact of such research is to implement not only substantial norms of the EU Competition law but its enforcement practice & to introduce it within the practice of AMCU. Value/originality. The paper examines a dominance doctrine, market power definition, economic strength, and collective dominance practice in the EU enforcement practice. A special attention was paid to enforcement practice in the electricity market. Due to the fact that the investigation of Ukrainian electricity market was provided for the first time in Ukraine, there is no practice yet in this issue. This causes the necessity of wide comparative approach in the principles of collective dominance in the electricity market in Ukraine. Results. The paper finds that the AMCU’s approach to electricity market regulation in Ukraine confirms the necessity to reform the system of the governmental regulation in the wholesale electricity market and in the market of services for electricity transmission, necessity for the change of the system for tariff and pricing policy formation on the part of the National Energy and Utilities Regulatory Commission of Ukraine and the Ministry of Energy and Coal-Mining Industry of Ukraine for developing the competition in electricity market and the need to follow the approaches and criteria of the EU competition law with regard to determination of the dominance in the market, which is stipulated by the international legal obligations of Ukraine arising from Articles 18 and 94 of the Treaty establishing the Energy Community and Art. 255 of the EU-Ukraine Association Agreement.