Editor’s note: This op-ed was originally published in Russian in Novoe Vremya.

In 2015, the Anti-Monopoly Committee of Ukraine got into the media and public spotlight in relation with yet another cause célèbre, which indirectly affected the interests of business and regular Ukrainians.

In April 2015, after more than three years of investigation, the Anti-Monopoly Committee of Ukraine issued a ruling in the biggest-ever case in the retail industry – the alleged cartel collusion of the retail chains.

The actual case is curious not just because it took so long to investigate. It was unusual for a number of reasons. First, it involved nearly all national and international retail chain operators in Ukraine, including Auchan, Billa, Velyka Kyshenia, Metro, Novus, Silpo, Fora, Furshet, and Eko-Market.

Second, the Anti-Monopoly Committee of Ukraine was seeking one of the biggest fines in the history of Ukraine, which in total added up to over Hr 200 million.

The committee alleged signs of collusive behavior among the chains, leading to an increase in retail prices in Kyiv. This case is especially interesting because of the possibility of political speculation around the price increase and because of the involvement of some of the most well-known companies.

The defendants did not agree with the committee’s accusations, and as one could expect, a court appeal followed.

The interest to this much-discussed case has faded out recently, but it shouldn’t have, because a recent court decision regarding AC Nielsen Ukraine, a company represented by myself and my partner Oleksandr Voznyuk, significantly changes things.

What is the role of retailers in Ukrainian business?

Throughout the whole situation, the committee kept the public interest up (but for the sake of accuracy I should mention that we’re talking about the previous members of the regulator, not their new team).

Despite the presumption of innocence, AMCU representatives publicly spoke about the defendants as violators long before announcing the decision. In that way, they manipulated the public opinion, including, as it turned out, the opinion of some of the judges who were hearing the appeals.

At the same time, the defendants were offered a choice between either agreeing with the AMCU’s accusations or facing serious fines – a deal method which tends to work well in such cases.

The risk of sanctions and the negative presentation in the media put serious pressure on the defendants, diminishing their desire to defend themselves effectively in court. This was perfectly demonstrated in action: Even a quick glance at the size of the fine for each company can tell which decision the company went with.

I’m positive that each company based their reaction on personal interests and made the right decisions, but on the whole, this case against retail stores once again showed two system errors in the anti-monopoly investigations.

First and foremost is the perspective of a long and hard-to-predict court defense amidst the threat of high fines, which creates preconditions for instituting fabricated or unproven criminal proceedings against companies which can’t afford such risks or do not have enough resources to defend themselves.

Secondly, it’s the interdependence of the defendants in the case about collusion claims. The decision of one company to agree with the accusations for the sake of their own short-term comfort significantly affects the chances of the rest of the defendants to defend their interests and the truth.

Apart from the fines, the AMCU decisions show another separate problem: the demands, which they contain, call into question the further existence of the services the defendants offer, which is what happened to ACNielsen Ukraine.

The company offered marketing services to some of the defendants, and in AMCU’s opinion, this allowed the retail stores to negotiate on product prices and relationship politics with the suppliers. The AMCU’s resolution questioned the legality of the companies’ usage of marketing research in general, as well as the legality of other companies offering similar services in Ukraine.

In fact, most of the accusations were based on the ACNielsen Ukraine’s marketing reports. The company faced a relatively low fine in the amount of Hr 400,000. The small fine likely aimed to reduce the company’s desire to go to court.

But ACNielsen Ukraine took a strong stance and, in March, after more than 18 months of hearings, the court ruled in its favor.

This decision allows new prospects for the successful defense of those defendants who didn’t take the deal and who still defend their own interests in the court to these days.

Instead of a conclusion

The case of retail stores and its resolution is also interesting because of many legal aspects, which should be explored on the pages of relevant expert media publications.

On the whole, it showed that the path to justice can be long and burdensome, but it can be successfully accomplished even in what seems like a dead-end situation. Let’s remember that back in the time the AMCU’s attitude toward the defendants was phrased like this: “The defendants have a sacred right to appeal our decision in court. But where’s the logic? They had the right to prove their innocence in the AMCU and they didn’t do it, so what will they present in court?”

And finally, what should we do with the increased prices and who is to blame here? Unfortunately, there is no answer. Maybe it does not lie within the platitude of the AMCU at all. The AMCU decision did not change the industry in the slightest, but then controlling and regulating prices is not within their functions.

Alexey Pustovit is a partner with Kyiv-based Asters law firm. He focuses on competition law, public procurement, mergers & acquisitions, anti-dumping, international trade and support for securities transactions. He advises Ukrainian and international clients on antitrust and competition issues and represents them before the Antimonopoly Committee of Ukraine.