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Guidelines

For inspection by Ukrainian Competition Authorities

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What documents must the officials present?

Ukrainian Competition Authorities
 

  • In order to inspect a company the officials must present (a) service certificates (official IDs), (b) a court decision and (c) a decree issued by the AMC of Ukraine on the inspection (the decree must contain the number, date and place of its adoption; title, surname, full name, patronymic (if any) of the person who issued the decree; number and date of the court decision of the commercial court; number of the case in which the search is being conducted and details of the order to initiate it, if any; name of the entity of the search; information on the composition of the inspection commission; dates of the beginning and end of the inspection, list of issues to be clarified during the inspection; information on the rights and obligations of the commission members; warning of the statutory liability for obstructing the inspection).  
  • Practical recommendation: Ask the officials to present documents indicated in paragraph (1) above. If provided, check very carefully:  
    • Is our company the addressee?  
    • Which accusations are being raised against our company (subject matter of the inspection)? 
    • Where may the officials search? 
    • What actions are allowed by the court decision to be conducted by the officials during the inspection?  
  • If there are no inspection documents, object to any inspection. However, do not attempt to stop the officials. Follow the same procedure if the officials extend the scope of the inspection on the spot. 
  • Separately, request the officials to present their service certificates (official IDs) and write down their full names and certificates’ details (date of issue, series and number – if applicable), as well as request to provide a duly certified copy of the AMC decree to conduct the inspection.  

Where and how may the officials search?

Ukrainian Competition Authorities
 

  • Request the officials to wait until a competent person from the legal department or an external lawyer / attorney-at-law has arrived before they start the inspection (in such case the officials are obliged to wait for the indicated person for three hours upon such request). Never leave the officials unattended. During the inspection, every official should be accompanied by one employee for control purposes.  
  • Please note that you are only obliged to passively tolerate the inspection. You are therefore not obliged to actively assist the inspection. The inspection may be performed with the support of the police. Therefore, comply, but do not “over cooperate”.  
  • The inspection can extend to all business premises, including cupboards, desks, safes, cars, IT systems, computers, electronic communications and information storage equipment, servers, employee workstations, etc., or persons. You may not deny the officials access to any such premises and/or objects/persons. 
  • The officials are also entitled to ask questions (see 4 below). 
     

What may the officials search?

Ukrainian Competition Authorities

Most important

  • Never voluntarily surrender any objects or documents. Never destroy or hide any objects or documents. However, do not resist against a formal seizure. Ask for formal evidence of seizure (e.g. seizure process to be recorded in the protocol). The officials commonly prohibit all individuals present in the premises to perform any actions with property, objects, documents and other media until the end of their inspection. Even if you do not hear such a prohibition from the officials, you should still refrain from taking such actions without the permission of the officials. 

Documents

  • In principle, the officials may seize originals of all documents, even if they contain business secrets. Therefore, make a copy of every seized document. The AMC of Ukraine must provide the person whose evidence has been seized with certified copies of the document(s) within three days from the day of a request from that person.  
  • The following documents may not be seized, copied or inspected by the officials: 
    • Documents which are located at a person’s residence or other possessions, 
    • Private documents in so far as these are of no significance as evidence. 
  • If the officials want to inspect such privileged documents a corresponding court decision shall be provided.  

Computers and other objects

  • In general, the officials are also entitled to seize computers and other objects. Moreover, they may make electronic copies of computer files. However, request that computers and servers are left at the company. Grant access to computer files. Important: always make an electronic copy of all computer files which the officials take away. 
  • If appropriate, inform the officials that documents which are privileged or which are not related to the accusations are saved on the computer and may not be copied. In this case request that the officials do not seize the computer or data storage media. Further request that the officials only make random checks of folders and files which are not related to the accusations raised.If the officials request access to computers, telephones or other technical means protected, for example, by a password or in another way which you do not know how to unlock, inform the officials. The officials have the right to use technical or software tools to overcome such security systems only if the court decision indicates so. If the court decision does not contain a reference to the possibility of using such means, bring this to the officials’ attention but in no case try to stop them. 

Protocol / Seals

  • After conclusion of the inspection, you should insist that the officials make a precise list of all evidence seized. The protocol of seizure of evidence (documents, computers and other objects) must be signed by the two authorized officers of the relevant body of the AMC of Ukraine.   
  • The officials are entitled to affix seals to, inter alia, premises, rooms, cupboards and documents, e.g. if an inspection lasts several days, but only on the basis of a court decision of a commercial court. Check the existence of such a decision, as well as whether it contains a reference to the possibility of officials to do the above, but do not prevent them, even in the absence of such a decision / reference to sealing (sealing). Do not break this seal. The arrest of the property, objects, documents and other data carriers requires drawing up a protocol which is signed by two authorized officers of the relevant body of the AMC of Ukraine.  

Who may be questioned by the officials and how?

Ukrainian Competition Authorities
 

The officials are entitled to request explanations from any employee. At the request of the AMC of Ukraine employees must give explanations, including revealing restricted data, bank and commercial secrets. 

  • Ask to be questioned only in the presence of an external lawyer. But note that officials are obliged to wait for such a person only for three hours after the request is made. 
  • You have the right to request the presence of an interpreter, but the officials are not obliged to wait for them in order to conduct the inspection. 
  • All relevant answers are recorded in the protocol which is signed by the authorized officer of the AMC of Ukraine and the person being interviewed. Make sure that all questions and answers are recorded during the interview in the protocol. Never sign any document until after a lawyer has been consulted. However, if you refuse to sign the protocol with your explanations the officials will indicate in the protocol that you refused to sign it. Sign the protocol only if it is correct and complete. Ask for a copy of the protocol. 

  • The officials may request any information requisite for conducting the investigation. 
  • Answer only questions which are actually related to the purpose of the inspection. Answer only the questions asked. Give short and precise answers. Tell the officials if you do not know the answer to a question. Do not make any assumptions. 
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