On December 12, 2024, the Antimonopoly Committee of Ukraine (AMCU) adopted two decisions exempting the businesses from liability for violating laws governing the protection of economic competition.

Its review of the case established that two companies committed violations in the form of anti-competitive concerted actions related to the distortion of the results of two tenders for the procurement of construction works .

When adopting these decisions, the AMCU applied the leniency procedure for the first time in its history.

The AMCU received applications for exemption from liability, and their review determined that the applicant had fulfilled the conditions set for a full exemption .

The conditions included the following:

• The applicant reported its participation in the anti-competitive concerted actions earlier than other participants, before submission of preliminary findings in the case.
• The applicant disclosed the anti-competitive concerted actions to the AMCU.
• The applicant provided evidence that was essential for adoption of the decision in the case.
• The applicant ceased its participation in the anti-competitive concerted actions.
• The applicant actively and promptly cooperated with the AMCU, provided information in a timely manner, ensured its completeness and reliability, and communicated all necessary information and other evidence regarding commission of the anti-competitive concerted actions.

Had the leniency procedure not been applied, such commission of concerted anti-competitive actions would have amounted to up to 10 percent of the income (revenue) of the business entity, based on the last reporting year preceding the year in which the fine is imposed.

Based on these two AMCU decisions, the following initial practical conclusions can be made:

• This first application of the procedure shows that existing legislation is already prepared for the application of this law principle; moreover, it indicates that the applicants to some extent are aware of its application.
• It is possible to cooperate with the AMCU.
• Entities should assess their risks more realistically, including the risks resulting from anti-competitive concerted actions.
• The leniency procedure concerns not only exemption from liability under certain conditions; it also also normalizes competition in the market. This is because if one participant in an anti-competitive concerted action (e.g., collusive bidding or cartel) may apply the leniency procedure, the risk of revealing those actions increases significantly, which may have negative consequences for other participants of such actions.

Recent changes in the leniency procedure in Ukraine

In connection with yet another stage of reforming the antimonopoly legislation of Ukraine, the AMCU approved the Procedure for Exempting Business Entities from Liability for Committing Violations of the Competition Legislation in the Form of Anticompetitive Concerted Actions, No. 19-rp dated November 30, 2023.

The procedure addresses the mechanism and procedural principles for applying the leniency procedure in Ukraine. It provides for:

• Clear criteria for exemption from liability; specific conditions are defined, both for full and partial exemption from liability. These conditions are described above and must be met in their entirety.
• It sets out procedural principles for submitting applications for exemption.
• Mechanisms for cooperating with AMCU bodies have been put in place to ensure completeness and reliability of the information provided.