Antimonopoly Committee of Ukraine applied the new leniency programme for the first time

As reported on 9 August 2023, the Ukrainian parliament adopted the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Improving the Activities of the Antimonopoly Committee of Ukraine”, which came into force on 1 January 2024 (the Law). This law introduced new rules for a leniency programme to be applied by the Antimonopoly Committee of Ukraine (AMCU). On 30 November 2023, the AMCU detailed procedural aspects of the new leniency programme when it adopted the Procedure for Exemption from Liability for Violation of Legislation on Protection of Economic Competition in the Form of Anticompetitive Concerted Actions (Leniency) (the Procedure).

According to the AMCU’s press release on 12 December 2024, it fully exempted an undertaking from liability for the first time under the new leniency procedure. This procedure was applied during investigations into anticompetitive concerted actions between two undertakings related to distortion of the results of two tenders for construction works procurement. The AMCU adopted two decisions granting full exemption from liability to the undertaking that disclosed bid rigging to the agency for each of the tenders, while another undertaking involved was fined 2% of its annual revenue for each of the two infringements established by the AMCU.

As reported by the AMCU, following leniency applications by one of the participants involved in bid rigging, the AMCU established that the applicant had fulfilled all the conditions for full exemption from liability as set by the Law and the Procedure, which include the following:

• Disclosing the anticompetitive concerted actions to the AMCU;
• Ceasing participation in anticompetitive concerted actions no later than the day of submitting the leniency application, unless such participation is necessary to ensure the integrity of the case;
• Cooperating with the AMCU based on efficiency, timeliness of information provision, completeness and reliability of the information provided, and the duration of cooperation;
• Providing evidence not available to the AMCU, which is:
  • sufficient to adopt an order to initiate review of a competition law infringement case, if on the day of submission of the application such an order has not yet been adopted; or
  • essential for making a decision in the case, if the order to initiate the case has already been issued but the AMCU lacks sufficient evidence to complete the investigation and reach a decision.

Full exemption from liability, however, is only available to the first applicant. Subsequent applicants, in turn, may expect reductions in fines of up to 50% for the second applicant, 30% for the third, and 20% for others. In order to achieve full exemption from liability or reductions in fines, leniency applications should be filed with the AMCU before the agency sends its preliminary conclusions in an infringement case.

Following the reported case and statements from the AMCU officials, the agency remains committed to implementing leniency programmes in Ukraine, drawing on European practices. Since the AMCU has granted leniency for bid rigging, which it considers among the most serious and harmful infringements, leniency may also be considered for other types of anticompetitive concerted actions. As a result, companies can consider leniency procedures when deciding on possible options to mitigate potential negative consequences of competition law infringements.

For more details on competition regulations and investigation procedures in Ukraine,  contact your CMS client partner or these local CMS experts: Maria Orlyk, Olga Belyakova, Borys Danevych.