OECD Peer Reviews of Competition Law and Policy: Ukraine 2025

5. Alignment with OECD instruments and recommendations

Abstract

This chapter outlines recommendations to strengthen Ukraine’s competition framework and the effectiveness of AMCU. Key recommendations focus on enhancing enforcement capacity, strategic case prioritisation, and the rigor of economic analysis in competition assessments. Improvements are proposed for sanction levels to ensure credible deterrence, procedural rules to protect rights of defence, whistleblower protections, and case allocation between central and regional offices.

As previously mentioned, Ukraine has formally requested Associate status in the OECD Competition Committee. This report has been prepared to assess whether Ukraine meets the necessary requirements for such status, as set out in the Committee’s Participation Plan. Specifically, Associate Members are expected to demonstrate the coherence of their competition law and policy with OECD competition standards through a peer review and to adhere to a set of key legal competition instruments while showing both the willingness and capacity to implement them effectively.

The analysis included in this report has been guided by a series of OECD Council Recommendations that represent best practices in the design, implementation and enforcement of competition law and policy. These instruments, though distinct in their specific focus, collectively promote a modern competition system that is transparent, effective and responsive to changing market conditions. They encourage jurisdictions not only to adopt sound legal frameworks, but also to ensure that institutional practices and policy choices foster competitive outcomes in practice.

A fundamental principle running through these Recommendations is the need to integrate competition principles into broader policy domains in ways that avoid unintended market distortions. For instance, the Recommendation on Intellectual Property Rights and Competition (OECD, 2023[1]) and the Recommendation on Structural Separation in Regulated Industries (OECD, 2016[2]) stress the importance of limiting exclusive rights or regulatory privileges that could inhibit market entry or entrench dominant positions. They call on authorities to apply competition tools when evaluating arrangements such as licensing regimes, patent practices and vertical integration in sectors like utilities, with the goal of maintaining contestability and curbing undue market power.

Complementing this is the Recommendation on Competition Assessment, which provides a structured methodology for reviewing laws and regulations through a competition lens. Its aim is not only to identify legal barriers to competition, but also to embed a culture of competitive neutrality and economic efficiency in policymaking. This approach is further reinforced by the Recommendation on Competitive Neutrality, which underscores the need for equal treatment of public and private market participants, especially in environments where state-owned enterprises or government subsidies play a significant role.

In the area of enforcement, the OECD Recommendations emphasise both effectiveness and fairness. The Recommendation on Effective Action Against Hard Core Cartels highlights the central role of robust cartel enforcement, advocating for strong investigative powers, effective leniency programmes and sanctions that are sufficiently deterrent. At the same time, the Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement insists on the importance of due process, predictability and impartiality in enforcement actions. These two principles—deterrence and legitimacy—are presented not as competing objectives, but as mutually reinforcing elements of a credible enforcement regime.

Merger control is also addressed, particularly through the Recommendation on Merger Review, which stresses the importance of timely and evidence-based analysis to prevent harmful concentrations while ensuring procedural clarity for businesses. The objectives of legal certainty, transparency and efficiency are consistently echoed across the OECD’s competition instruments.

Another critical theme across these instruments is institutional capacity and the need for effective co‑ordination. The Recommendation on International Co-operation on Competition Investigations and Proceedings and the Recommendation on Fighting Bid Rigging in Public Procurement both highlight the importance of collaboration between agencies, both domestically and internationally. This is increasingly vital in an interconnected economy where anti-competitive practices often cross borders and procurement markets remain susceptible to collusion.

Overall, this analysis does not treat the OECD legal instruments merely as formal criteria, but as a coherent policy framework for assessing whether a national competition system fosters open markets, robust enforcement and equitable treatment of all market participants. The Recommendations provide a structured foundation for identifying strengths, diagnosing gaps and shaping future reforms.

The general conclusion of this analysis is that the Ukrainian competition system is evolving in a positive direction and shows general and increasing alignment with OECD standards.

However, as it was explained in the analysis of each one of the chapters of this report and will be reflected in the following tables, certain areas still could benefit from further development. We have included a list of recommendations considered a priority and a final table with the whole list.

Table 5.1. Priority recommendations

1	Strengthen enforcement capacity and strategic focus
2	Strengthen the economic analysis of competition assessment
3	Align sanction levels with the objective of achieving a credible deterrent effect against anti-competitive conduct, if necessary, but not only, by readjusting the relation with territorial offices
4	Streamline case allocation between regional and central authorities or giving them more capacity and powers
5	Adapt procedural rules to guarantee an adequate protection of rights of defence and procedural fairness
6	Improve whistleblower protection and reporting channels
7	Reassess the prior notification requirement and explore enhanced case prioritisation approaches
8	Enhance substantive merger assessment strengthening approach to remedies and considering stricter decisions when needed
9	Enhance transparency, accountability, and advocacy by establishing a centralized, accessible database of AMCU decisions; adopting impact-focused reporting metrics; and expanding the AMCU’s competition advocacy powers to promote pro-competitive policies across government.
10	Reconsider if, how and when the Cabinet of Ministers can override AMCU decisions
11	Expand the AMCU’s inspection powers by authorizing searches of private premises and restoring its full investigative capacity. Generalizing the use of proactive tools such as unannounced inspections and dawn raids would enhance the agency’s ability to detect and deter anti-competitive practices, address practical enforcement challenges, and ensure the effectiveness and integrity of its investigative measures.

Table 5.2. List of main recommendations organised by Chapter

Legal Framework
Reassess the prior notification requirement	Exploring the possibility of moving away from mandatory prior notifications for agreements unlikely to harm competition. A shift toward self-assessment by firms may help reduce administrative burden while maintaining oversight. It may be beneficial to refine policy goals to focus more directly on core competition outcomes.
Explore enhanced case prioritisation approaches	Introducing clearer criteria for case selection might allow AMCU to allocate resources more efficiently. Emphasising higher impact could strengthen overall enforcement outcomes while aligning with strategic priorities.
Institutional framework
Enhance continuity, institutional memory and workforce stability	Reinforcing AMCU’s professional and independent leadership could ensure that senior appointments are guided by merit-based criteria with a strong emphasis on relevant expertise in competition policy or related areas critical to the agency’s mission. Enhancing the transparency and predictability of Temporary Boards would also contribute positively to procedural fairness and institutional credibility.
	To support continuity and resilience, AMCU may consider formalising internal processes that preserve strategic priorities and operational consistency during leadership transitions. Additionally, expanding career development pathways and staff retention measures—building on recent progress in salaries and professionalisation—would contribute to maintaining a stable, experienced workforce over time.
Streamline case allocation between regional and central authorities	Streamlining case allocation between regional and central authorities by reserving high-impact or complex cases for the central level could foster consistent standards and more proportionate sanctions.
Ensuring Adequate Budgetary Support for the AMCU	Securing an adequate and sustainable budget for AMCU to enable the effective fulfilment of its mandate. Aligning its financial resources with international standards and the practices of peer competition authorities in comparable jurisdictions would provide a solid foundation for more robust enforcement. Additional funding could be strategically allocated to strengthen investigative capacity, attract and retain skilled personnel, upgrade analytical tools, and deepen engagement in international cooperation.
Improve clarify in institutional roles and promote co-ordination	Further clarification of mandates between AMCU and sector regulators may reduce overlap and improve efficiency. Formal co‑ordination mechanisms—such as memoranda of understanding—could help ensure consistent application of both regulatory and competition policy.
Reconsider if, how and when the cabinet of ministers can override AMCU decisions	To the extent the Cabinet of Ministers can intervene in AMCU’s decisions, it would be necessary to determine how and when it can do so. Establishing transparent, predefined criteria and ensuring judicial review of such interventions can help reinforce legal certainty and institutional credibility.
Competition enforcement process
Improve the effectiveness of the leniency programme	Enhancing the appeal and effectiveness of AMCU’s leniency programme could be achieved by broadening protections for first applicants (including e.g. exemptions from debarment or specific considerations in civil liability where justified) and by extending appropriate benefits to individual persons and employees of corporate applicants. In parallel, the establishment of clear and transparent standards on the type and quality of information required, along with an emphasis on continuous co‑operation throughout the process, would increase legal clarity and programme credibility.
Improve enforcement processes and hearing practices	Enhancing transparency in decision-making and priority-setting—while respecting confidentiality—would reinforce trust in the agency’s operations. It would be useful to revisit limitations on third-party participation in hearings, establishing objective criteria for exclusions, and to ensure hearings are systematically held to enable a comprehensive consideration of facts and legal arguments.
Fighting Collusion
Strengthen enforcement capacity and strategic focus	AMCU’s enforcement strategy can benefit from a broader focus beyond bid rigging, allocating resources to uncover and address other forms of serious anti-competitive agreements. Strengthening investigative powers—including access to digital evidence and witness testimonies—and enhancing tools for assessing systemic collusion through deeper market analysis would improve case quality.
Improve whistleblower protection and reporting channels	To encourage the reporting of collusive behaviour, AMCU should develop a whistleblower policy that offers secure, anonymous channels for non-leniency informants, along with appropriate safeguards to protect against retaliation.
Refine exemption policies and vertical restraints assessment	Revisiting Competition Law exemption framework could help reduce uncertainty and ensure exemptions are limited to clearly justified cases. The removal of blanket exemptions for SMEs, coupled with the clarification of whether exemption conditions are cumulative or alternative, would ensure a more balanced and objective application of policy, while periodic reassessment could further enhance transparency and credibility.
Strengthen legal definitions of key concepts	Redefine more clearly the following terms: - The term “concerted actions” could be substituted in favor of broader, clearer references to agreements and tacit co‑ordination. - Clarifying the boundary between merger control and anti-competitive agreement assessments, particularly in structural corporate transactions, would help avoid misclassification and ensure more consistent enforcement.
Tackling Abuse of dominance
Strengthen the assessment of dominance	Extend the analysis of dominance beyond market share indicators, with a broader set of analytical criteria, such as barriers to entry, countervailing buyer power, access to essential facilities and more. Assessing each case based on its actual or potential impact on competition would allow for a more tailored and proportionate application of the law.
Deterrence
Align the sanctioning methodology with international best practices	Clarify the methodology for calculating fines, anchoring it to relevant benchmarks such as market-specific turnover with caps based on global turnover and other relevant factors. Sanctions should be proportionate to the gravity of the infringement and consistently applied across cases.
Align sanction levels with the objective of achieving a credible deterrent effect against anti-competitive conduct	Ensure that fines reflect the gravity and duration of the infringement and reach deterrent level. Also, adjust the statutory fine caps that limit regional enforcement authority or mandating the referral of major cases to the central office would enhance enforcement consistency.
Improve transparency and efficiency in fine collection	Close loopholes that enable firms to evade penalties through restructuring or name changes. Establish internal monitoring of fine status and enhance co‑operation with judicial authorities to enforce collection through measures like asset freezes or procurement bans.
Merger control
Enhance substantive merger assessment	Extend the analysis beyond market shares and incorporate additional factors such as the closeness of competition between merging firms, the presence and strength of other market constraints, and the specific dynamics of the market, including innovation and bidding processes and aligning with international best practices.
Update and streamline notification requirements	Consider updating notification thresholds to reflect inflation and evolving market structures since their last revision in 2016.
Improve transparency and quality of decision-making	In Phase 1 decisions, publishing more detailed summaries—covering aspects such as market definition, competitive concerns, the parties’ arguments and the reasoning behind the clearance—would improve clarity. In Phase 2, further elaboration on theories of harm, analytical assessments, and remedial measures would be beneficial. Where serious concerns cannot be resolved through commitments, AMCU should be prepared to impose remedies or prohibit mergers in order to safeguard market structure and protect consumer welfare.
Strengthen approach to remedies and consider stricter decisions when needed	Prioritise structural over behavioural solutions when feasible, recognising the practical challenges associated with monitoring and enforcing long-term behavioural commitments. In cases where behavioural remedies are appropriate, developing more robust oversight mechanisms would be essential to ensure compliance and preserve competitive outcomes over time. Blocking mergers in the appropriate cases, when remedies cannot solve the problem should be considered.
Advocacy and market studies
Improve timeliness, quality and impact of market studies	Consider introducing internal deadlines to ensure studies are completed within a reasonable timeframe, while prioritising high-impact sectors through a structured scoping phase. Strengthening data analysis would increase the rigor and reliability of findings. To ensure that the study outcomes translate into meaningful changes, follow-up mechanisms could be stablished. In addition, it could be useful to link findings to enforcement priorities and engage in targeted advocacy to promote pro-competitive reforms could be useful. Transparency could be further enhanced by publishing non-confidential study versions that could contribute to advocacy and increase credibility of the Agency.
Others
Improve the national and international co-operation framework	Expand the network of bilateral and regional partnerships by negotiating additional Memoranda of Understanding (MOUs) with regulators, administration, Parliament, competition authorities in neighbouring countries and major trading partners. These instruments can facilitate timely information exchange, co‑ordinated investigations and mutual trust-building—especially in cross-border merger reviews or cartel enforcement—ultimately strengthening regional deterrence and enforcement consistency.

Table 5.3. Additional recommendations for consideration

Increase transparency and foreseeability in enforcement	Increase legal clarity and consistency with evolving enforcement standards, e.g. it may be beneficial to clarify that the list of abusive practices in the legislation is intended to be illustrative rather than exhaustive. Reconsider the current legal framework governing AMCU hearings, particularly provisions that enable parties to delay or obstruct proceedings and restrict third-party participation. It is recommended to define clear, objective, and narrowly tailored grounds for limiting third-party involvement, thereby promoting greater transparency, procedural efficiency, and inclusiveness in competition enforcement processes. Ensure the celebration of hearings to benefit from a fuller factual and legal record.
Increase deterrence through the inclusion of alternative sanctions	Include additional measures such as tailored debarment from public procurement or individual sanctions (including disqualification) could improve both fairness and enforcement impact. Systematically monitor and track fine collection: Establish a comprehensive internal system to track the status of fines—imposed, collected, pending or unpaid. Publish collected statistics: Regularly disclose anonymised and aggregate data on sanctions collection rates (e.g. annually) to enhance public accountability while respecting confidentiality obligations. Set fine collection performance targets: Define and monitor specific annual targets for fine recovery rates to strengthen internal performance management. Strengthen fine collection tools: Collaborate with judicial authorities to develop expedited mechanisms for forced collection, including asset freezes, property liens, or limiting access to public procurement for non-paying firms. Increase visibility and public awareness of sanctions: Actively publicise major enforcement actions and fines to send strong deterrent signals to the market and reinforce the credibility of competition policy enforcement.
Focus on enforcement aspects of public entities behaviour	Establishing tailored guidelines for evaluating potentially anti-competitive conduct involving public sector entities (if facilitators or economic actors).
Focus on procedural aspects	Refining AMCU’s enforcement framework through the introduction of internal deadlines that contribute to greater legal certainty, procedural efficiency and protection of rights of defence. Reconsider current restrictions that allow parties to block third-party participation in AMCU hearings and define objective, limited grounds for excluding third parties.
Establish clear legal mandates and competency boundaries between regulators and competition authority	Amend relevant laws to explicitly delineate the respective roles of AMCU and sectoral regulators in areas where competition and regulation intersect. Formalise structured co‑ordination mechanisms that promote coherent enforcement while respecting the distinct roles of competition and sectoral regulation.
Expand and institutionalise competition advocacy powers	AMCU’s advocacy role could be reinforced through legislative amendments including the submission of all draft laws and regulations with potential competition implications—regardless of origin—to the authority for review. Establish mechanisms that could help them identify legislative and regulatory initiatives that may restrict or distort competition.
Promote effective private enforcement of competition law	Procedural and substantive provisions could be included in the system to promote private redress such as, e.g. enable stand-alone civil claims without requiring a prior finding by the competition authority. Introduction of collective redress mechanisms, such as class actions. Suspending limitation periods during ongoing AMCU investigations or judicial review. Enhance access to relevant evidence, including through clear judicial powers for early disclosure orders directed at defendants and third parties. Procedural rules should clarify that courts may rely on reasonable estimations of harm rather than requiring precise quantification. Establishing a legal presumption that AMCU infringement decisions constitute binding evidence in follow-on damages cases would increase legal certainty and efficiency. To facilitate co‑ordination, courts should be required to notify AMCU of any competition-related private claims filed, while a public registry including non-confidential information on private enforcement cases and outcomes would improve transparency, track developments and guide future legal actions.

References

[1] OECD (2023), Recommendation of the Council on Intellectual Property Rights and Competition, OECD/LEGAL/0495, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0495.

[2] OECD (2016), Recommendation of the Council on Structural Separation in Regulated Industries, OECD/LEGAL/0310, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0310.