CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 mars 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 7 April 2025   FIFTH SECTION Application no. 51121/17 FANERY TA PLYTY, PAT against Ukraine lodged on 4 September 2018 communicated on 18 March 2025 SUBJECT MATTER OF THE CASE In June 2012 the applicant company was fined 15,903,000   Ukrainian hryvnias   (UAH) (at the time about 1,540,930 euros (EUR)), for anticompetitive concerted practices. In determining the amount of the fine, which was the maximum fine provided for in domestic law and was equal to ten percent of the applicant company’s turnover for the preceding year, the Antimonopoly Committee of Ukraine (“the AMC”), a special agency in charge of protecting competition, noted that it was the applicant company’s first infringement of the rules and that the company had not obstructed the investigation. The applicant company did not initially admit fault and challenged the fine in court. After having lost at first instance and on appeal, it admitted fault and in July 2013 the AMC, in view of that admission and the company’s difficult financial situation, reduced the fine to UAH 30,000. In December 2016 the Higher Commercial Court (“the HCC”), upon a claim by the Deputy General Prosecutor of Ukraine, quashed the reduction decision, finding no lawful grounds for the revision of the initial decision on imposition of the fine. In January 2017 the applicant company appealed in cassation against the first-instance and appellate courts’ original decisions upholding the fine of UAH   15,903,000 arguing, in particular, that the fine had been disproportionate. In March 2017 the HCC found against the applicant company. It held, in particular, that the anticompetitive practice, established by the AMC, had been actually admitted by the applicant company itself and that the determination of the fine was within the competence of the AMC and was not subject to judicial review. The applicant company complains that the court proceedings were in breach of Article 6 of the Convention, in particular because the courts refused to review the amount of the fine and relied on the applicant company’s recognition of fault against it in an unfair manner since the company had been deprived of an opportunity to withdraw its admission, despite the quashing of the reduction decision. The applicant company further complains under Article 1 of Protocol No.   l that the domestic legal framework for the determination of fines was not sufficiently precise, foreseeable and lacked guarantees against arbitrariness, in particular because of the absence of judicial review of fines imposed. QUESTIONS TO THE PARTIES 1.     Was Article   6 §   1 of the Convention under its criminal limb applicable to the proceedings in the present case (see, for example and mutatis mutandis , Lilly France S.A. v. France (dec.), no 53892/00, 3 December 2002; A.   Menarini Diagnostics S.R.L. v. Italy , no.   43509/08, §§   38-45, 27   September 2011; Produkcija Plus Storitveno podjetje d.o.o. v.   Slovenia , no.   47072/15, §§ 41-47, 23 October 2018)?   2.     Did the applicant company have a fair hearing in the determination of its civil rights and obligations or of criminal charges against it, in accordance with Article   6 §   1 of the Convention?   In particular: (i)     was the Antimonopoly Committee of Ukraine an “independent and impartial tribunal established by law”? (ii)     if the Antimonopoly Committee of Ukraine was not such a tribunal, was the applicant company’s case reviewed by a judicial body having full jurisdiction and providing the guarantees of Article 6 § 1 of the Convention, having regard, in particular, to the Higher Commercial Court’s position concerning the courts’ power to review the proportionality of the sanction imposed on the applicant company?   3.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.   1? If so, was that interference lawful and compatible with the proportionality requirement under Article 1 of Protocol No. 1?