OECD Peer Reviews of Competition Law and Policy: Ukraine 2025

4. Judicial review and private enforcement

Abstract

This chapter assesses Ukraine’s judicial review and private enforcement framework in competition matters. It outlines the structure of the judicial system, identifies courts competent for competition cases, and examines judicial specialisation, training, and procedural timelines. The analysis addresses the right to appeal, types of appealable decisions, and standards of judicial review, highlighting AMCU’s role in court proceedings and evaluating both the effectiveness and limitations of judicial oversight.

It also examines private enforcement, describing the current framework and providing a critical assessment of its operation. Challenges, including delays, limited resources, and procedural uncertainties, are identified alongside opportunities to strengthen the system. The findings inform recommendations to enhance the efficiency, predictability, and overall effectiveness of judicial review and private enforcement, supporting a more robust and credible competition regime in Ukraine.

4.1. Judicial review

4.1.1. Institutional structure and legal procedures in Ukraine’s judicial system

Overview of the judicial system

Ukraine’s judicial system operates within a three‑tier structure, incorporating courts of first instance, appeal and last instance (cassation). The system is designed to uphold the rule of law, safeguard judicial independence, and ensure legal protection for individuals and businesses.

At the apex of the judicial hierarchy is the Constitutional Court of Ukraine, which is responsible for ensuring compliance with the Constitution. This Constitutional Court reviews laws and government actions for their constitutionality but does not adjudicate regular civil, criminal, commercial or administrative cases.

The system of general jurisdiction comprises three levels of courts, which handle civil, criminal, administrative and commercial cases:

• First-instance courts: This level includes Local Courts (civil and criminal cases) as well as Commercial Courts (business disputes) and Administrative Courts (disputes involving government authorities).

• Courts of Appeal: This level consists of General Courts of Appeal for civil and criminal cases, as well as Commercial Courts of Appeal and Administrative Courts of Appeal.

• The Supreme Court of Ukraine and its four cassation chambers: the Civil Cassation Court, the Criminal Cassation Court, the Commercial Cassation Court and the Administrative Cassation Court. The Supreme Court also has a Grand Chamber, which resolves jurisdictional conflicts, settles conflicting case law between cassation courts and considers cases that are fundamental to the development of law or involve a purely legal issue.

Competent courts for competition cases

Ukraine’s judicial system for competition law operates within the broader judiciary, with commercial courts responsible for adjudicating competition-related cases.

Legal challenges of decisions of AMCU’s central body fall under the exclusive jurisdiction of the Kyiv City Commercial Court at the first-instance level. This court adjudicates cases with a single judge per case. Appeals are heard by the Northern Commercial Court of Appeal, which operates through Chambers composed of three judges. Currently, more than ten judges handle AMCU-related cases at the Kyiv Commercial Court, while approximately 30 judges handle such at the Northern Commercial Court of Appeal.

Decisions issued by the administrative boards of AMCU’s regional offices may be appealed before the Commercial Courts of the Autonomous Republic of Crimea,1 Regional Commercial Courts, and the Commercial Courts of Kyiv and Sevastopol.

The Ukrainian judicial system provides for appeals to the highest court (cassation) in cases specified by law, in accordance with Article 287 of the Commercial Procedure Code of Ukraine.2

Judicial specialisation and training

The “Law of Ukraine on the Judicial System and the Status of Judges” establishes that cases are assigned based on judicial specialisation (Articles 15.5 and 18).

The State Judicial Administration of Ukraine, a government body responsible for providing organisational and financial support to the judiciary, has approved the General Classifier of Judges’ Specialisation and Categories of Cases. This ensures that cases related to the protection of economic competition are assigned to judges with the appropriate specialisation.

The National School of Judges of Ukraine provides regular training programmes to enhance judicial qualifications (Clause 3 of Part 1 of Article 105 of the Law of Ukraine on the Judicial System and Status of Judges). Additionally, specific training sessions, including those conducted with the participation of AMCU, focus on competition law enforcement.

Judges handling competition law cases also adjudicate other types of commercial disputes, including cases related to commercial transactions and intellectual property rights.

Duration of court proceedings in competition cases

The average duration of court proceedings against AMCU, including cassation review, ranges from one year to a year and two months.

The average timeframes for adjudicating competition cases at different judicial levels are as follows:

• First-instance courts: 4‑6 months

• Courts of appeal: 2‑4 months

• Supreme Court: up to 2 months.

These timeframes represent average durations, which may be extended depending on the complexity of the case, including factors such as the appointment of expert examinations. AMCU confirms that most of these appeals are on common bid rigging cases and that for big cases duration of trials is much longer.

Box 4.1. Examples of ongoing cases of judicial review

1. On 04 April 2022, the Commercial Court of Kyiv opened proceedings in case No. 910/ 970/22 on the invalidation of the Committee’s decision No. 694‑р of 21 December 2021 on violations in the form of abuse of a monopoly (dominant) position by a group of undertakings (Interstach Ukraine LLC, Dniprovsky KPC PJSC, Interncorn PJSC) on the national market for the primary sale of corn starch syrup and glucose syrups. As of May 2025, the case is still pending.

2. On 12 April 2022, the Commercial Court of Kyiv opened proceedings in case No. 910/3049/22 on the partial invalidation of the Committee’s decision No. 723‑р of 29 December 2021 on the violation in the form of abuse of dominant position by JSC “Dniproazot” concerning the suspension of liquid chlorine production. As of May 2025, the case is pending before the court of appeal.

3. On 27 May 2021, the Commercial Court of Kyiv proceedings in case No. 910/8100/21 on the invalidation of the Committee’s decision No. 178‑р of 30 March 2021. At the time of the investigation, it was established that in the retail trade of light petroleum products in Ukraine, there is a system of cashless payments using scratch cards and fuel cards “AVIAS” (hereinafter – the “AVIAS” project). Approximately 1 625 petrol stations (hereinafter – the “AVIAS” network) participate in this project. These gas stations operate under various brands in all regions of Ukraine. In total, they account for almost 25% of the country’s gas stations. The Committee determined that the AVIAS project is organised, co‑ordinated and operates with the aim of co‑ordinating the pricing and trading behaviour of participants. As of May 2025, the case is pending before the court of appeal. In this case, 30 undertakings are the plaintiffs and the decision holds more than 180 companies liable.

Source: AMCU.

Cases challenging AMCU decisions, including those related to economic competition, restrictions on monopolistic practices and protection against unfair competition, do not qualify for simplified procedures under Article 247.4 of the Commercial Procedural Code of Ukraine.

Right to appeal in competition cases

Parties in an AMCU procedure or a third person that did not participate in AMCU procedure but with a demonstrated legal interest may appeal certain decisions or orders issued by AMCU, as provided under Articles 36 and 48 of the Competition Law (Art. 60.1).

If an unauthorised person files an appeal, the court is required to accept the lawsuit for consideration. In such cases, the court examines whether the contested AMCU decision violates the claimant’s rights or legal interests. If no violation is established, the court will dismiss the claim.

Appeals must be filed within a statutory time limit of two months, starting from the date of receipt of AMCU’s decision or order. This deadline cannot be extended or renewed. The specific point at which the time limit begins for third parties that were not involved in AMCU procedure remains an open question. In practice the courts focus on whether the rights or legitimate interests of the parties have been violated.

Appealable decisions in competition cases

The following AMCU decisions are subject to appeal:

• orders refusing to open a case after a complaint due to absence of signs of a violation

• decisions to close a case due to a lack of evidence of an infringement

• decisions establishing a competition law infringement.

Procedural law classifies disputes related to the protection of economic competition as subject to review by the Supreme Court, without restrictions based on the relevance or content of a particular case. Access to the Supreme Court requires the applicant to prove one of the following grounds:

• whether the Supreme Court has issued a conclusion in similar legal relations and, if so, whether the lower court decisions align with that conclusion

• if the lower court decisions align with the Supreme Court’s conclusion but the applicant believes it to be incorrect, a justification for deviating from the established case law must be provided

• f no Supreme Court precedent exists on the issue, the applicant must justify why the Supreme Court should formulate one to ensure the unity and development of judicial practice.

Procedural and preliminary AMCU actions, such as information requests, orders to initiate a case, or submissions with preliminary conclusions, are not subject to appeal, as they do not in themselves violate the rights of undertakings.

If an appeal is filed against such procedural decisions, the court accepts the lawsuit for review and examines whether the contested AMCU action violated the claimant’s rights or interests. If no violation is established, the court will dismiss the claim.

Starting from 2024, AMCU has the right to conduct unannounced inspections supported by a Court order that is subject to appeal in accordance with the procedure established by the Commercial Procedural Code of Ukraine.

Interim measures are subject to appeal within 15 days of receipt.

In merger control cases, case law confirms that parties have the right to appeal against any AMCU decision. The core issue in such disputes is whether the decision infringes the rights of undertakings.

If a claim is filed by a person other than the applicant, defendant, or a third party -including those that were not involved in the case and did not acquire the legal status of third party- with a demonstrated legal interest, the court first examines whether the claimant’s rights or interests have been violated.

Standard of judicial review: Legality vs. merits

Ukrainian courts conduct a full review of AMCU decisions, assessing both their legality and merits. The review includes a comprehensive analysis of the case circumstances and considers:

• incomplete clarification of relevant facts

• failure to prove established facts

• inconsistencies between the decision’s conclusions and case facts

• sanctions, and

• violations or misapplications of substantive or procedural law (Art. 59.1 of the Competition Law).

AMCU has broad discretion in applying competition law, but this discretion is subject to judicial review to prevent arbitrary decision making. According to case law, AMCU’s discretionary powers must not be exercised arbitrarily, and courts must be able to review such decisions to safeguard against corruption and misuse of authority. Precedents emphasise the principle of good governance and require AMCU to justify its decisions within the limits of its discretion.

The Supreme Court may remand a case to the first-instance or appellate court for reconsideration and to address procedural violations; those courts can send the case back to AMCU, mainly if they consider that a decision of not opening a case was not funded. As a result, the same case may be reviewed twice by the Supreme Court.

The Supreme Court’s review focusses on:

• correct application of substantive law

• consistency of lower court decisions with Supreme Court precedents and

• procedural violations that hinder the establishment of factual circumstances (e.g. unjustified rejection of evidence or expert examinations).

Box 4.2. Examples of judicial control of AMCU decisions by Courts

Judicial interpretation on the standard of proof for establishing concerted practices

In its Resolution No. 15 of 26 December 2011, the Plenum of the High Commercial Court of Ukraine provided important guidance on the evidentiary standards applicable to the assessment of anticompetitive concerted practices.

The Court clarified that the mere presence of similarities in the actions – or inaction – of undertakings is not, in itself, sufficient to establish the existence of a prior agreement or co‑ordinated conduct. While parallel behaviour may raise suspicion of collusion, it does not constitute definitive proof of anticompetitive concerted actions.

The Court held that a finding of anticompetitive conduct must be supported by a comprehensive assessment of the circumstances and must be substantiated with specific and relevant evidence. Such evidence must be clearly articulated in the decision of AMCU when reaching a conclusion on the existence of concerted behaviour.

Moreover, the Court emphasised that similarity in market conduct should be evaluated in light of competitive dynamics. Parallel actions must be shown to result from co‑ordination among undertakings rather than from independent responses to market conditions or structural characteristics of the relevant product market.

This interpretation underscores the importance of a rigorous effects-based analysis in distinguishing unlawful collusion from lawful, rational market behaviour in oligopolistic or otherwise concentrated markets.

Source: Point 8.3. of the Resolution, https://zakon.rada.gov.ua/laws/show/v0015600-11#Text.

Tobacco market case (2019)

On 10 October 2019, AMCU imposed a record fine of approximately UAH 6.5 billion (equivalent to EUR 240 million) for anticompetitive concerted practices in the tobacco sector. The decision concerned Ukraine’s largest cigarette manufacturers – Philip Morris, Japan Tobacco, Imperial Tobacco, British American Tobacco and Pryluky – as well as their exclusive distributor, LLC “Tedis Ukraine” (Tedis).

AMCU found that the parties had engaged in co‑ordinated behaviour that restricted market access for alternative distributors in the primary cigarette sales market. The alleged infringement consisted of two core elements:

1. concerted conduct, including both actions and omissions, whereby the manufacturers maintained exclusive distribution arrangements with Tedis, designating it as the sole distributor across the entire market for primary cigarette sales; and

2. creation and maintenance of artificial barriers to entry for other potential distributors, manifested in the imposition of contract conditions more stringent than those applied to Tedis, despite the fact that Tedis itself did not fully meet those requirements.

AMCU’s findings were informed, in part, by its own prior recommendations and decisions issued to the relevant parties in 2014 and 2016.

Following the issuance of the decision, the sanctioned companies initiated legal proceedings to challenge the findings. The case proceeded through several levels of judicial review and ultimately reached the Supreme Court of Ukraine. In a landmark ruling, the Supreme Court overturned the lower court decisions and annulled AMCU’s infringement finding.

In its judgment, the Supreme Court emphasised that:

• The applicable legislation does not provide for the prejudicial value of AMCU decisions or recommendations issued in unrelated cases. As such, the AMCU remains obliged to independently establish and substantiate the relevant facts in each individual case.

• The earlier decisions cited by AMCU lacked direct evidentiary value, as they did not contain concrete, case‑specific factual findings. Instead, they were derived from earlier materials and thus could not substitute for primary evidence in the matter under review.

The Court reaffirmed the principle that competition authorities must carry out a case‑specific evidentiary assessment and base their conclusions on the direct analysis of relevant facts. Consequently, AMCU decision was annulled for failing to meet these evidentiary standards.

Source: AMCU decision No. 697‑р of 10 October 2 019, https://amcu.gov.ua/npas/rishennya-697-r-vid-10102019; AMCU News, https://amcu.gov.ua/news/amku-naklav-shtraf-u-65-mlrd-grn-za-antikonkurentni-uzgodzheni-diyi-virobnikiv-ta-distribyutora-sigaret; Ekonomichna Pravda Diakilych O., Panchak A. “Three ‘No’ to AMCU from the Supreme Court”, https://epravda.com.ua/news/2021/06/2/674543/; Court decision Yurydychna Gazeta (Legal Newspaper) No.3 (757), https://yur-gazeta.com/dumka-eksperta/tri-ni-dlya-amku-vid-verhovnogo-sudu.html.

DTEK coal case (2021)

AMCU established that the Ministry of Energy and Coal Industry recommended that state‑owned enterprises increase the maximum price of one coal product for the needs of thermal power plants and CHPs to a certain level. This is confirmed by the minutes of the meetings. After some time, the defendants indicated in the agreement’s prices for the supply of thermal coal, similar to those determined at meetings at the ministry. This situation lasted for almost three years.

According to AMCU, the Ministry of Energy and Coal Industry of Ukraine committed a violation which consisted in determining the maximum price of one ton of coal for thermal power plants and energy generating companies. Therefore, it could be considered necessary (facilitator) of an agreement among the companies in the thermal coal market.

Therewith, a decision was made to recognise the actions of the participants in the thermal coal markets: DTEK Trading LLC, DTEK Dniproenergo JSC, DTEK Zakhidenergo JSC, DTEK Skhidenergo LLC, SOE Derzhvuhlepostach, Cherkaske Khimvolokno PJSC and CENTRENERGO PJSC (consumers and producers) in the period from August 2016 to June 2019 as violations in the form of anti-competitive concerted actions. A fine of UAH 775 483 270 (equivalent to EUR 23 130 802) was imposed directly on the business.

The decisions of the AMCU were appealed and overturned in court. According to the court, the AMCU incorrectly qualified the actions of DTEK Dniproenergo JSC and other business under the Competition Law. The court noted the insufficient evidentiary base, the lack of a comprehensive approach to assessing all possible factors influencing the behaviour of business entities, as well as the fact that the decision concerning horizontal concerted actions assessed the actions of coal suppliers and consumers, who, in the opinion of the court, cannot compete with each other and commit anti-competitive concerted actions in the form of setting similar prices for goods. Considering that the contested decision does not contain evidence indicating the absence of objective reasons in similar actions on setting coal prices, the court concluded that the decision did not prove the commission of a violation.

Sources: AMCU decisions No. 235‑р of 29 April 2021, https://amcu.gov.ua/npas/pro-porushennya-zakonodavstva-pro-zahist-ekonomichnoyi-konkurenciyi-5 and No. 236‑р of 29 April 2021, https://amcu.gov.ua/npas/pro-porushennya-zakonodavstva-pro-zahist-ekonomichnoyi-konkurenciyi-ta-nakladennya-shtrafu-194. OpenDataBot: Court documents in case No. 910/12446/21, https://court.opendatabot.ua/cause/910%2F12446%2F21.

AMCU’s role in court proceedings

AMCU has the authority to represent itself in court. The Legal Department includes a specialised unit responsible for defending AMCU decisions in legal proceedings.

An administrative order issued by the Chair of AMCU regulates the co‑ordination between AMCU structural units in preparing procedural documents for litigation. During court hearings, specialised AMCU units actively participate in defending the legitimacy of AMCU decisions.

4.1.2. Challenges and opportunities in judicial review

The Recommendation of the Council on Transparency and Procedural Fairness in Competition Law Enforcement [OECD/LEGAL/0465] (2021[1]), from 06 October 2021, stablishes that parties in a competition procedure must have access to an impartial and independent judicial review of both procedural and final decisions, with written, reasoned rulings. Ukrainian system is in compliance with this recommendation.

Cases of challenges of AMCU’s infringement decisions in Court are rare and usually unsuccessful. For example, the Ukraine International Airlines (UIA) filed a complaint against AMIC Aviation Ukraine (AMIC), a major supplier of aviation fuel. UIA alleged that AMIC had abused its dominant market position by imposing unfair pricing and contractual terms. AMCU investigated these allegations and, in September 2015, concluded that AMIC had indeed engaged in anticompetitive practices. Consequently, AMCU imposed a fine on AMIC for abusing its dominant position in the aviation fuel supply market. Subsequently, AMIC challenged AMCU’s decision in court. However, in June 2018, the Northern Commercial Court of Appeal upheld AMCU’s decision, reinforcing the authority’s stance against anticompetitive behaviour.

In 2018‑2023, AMCU issued over 725 decisions including competition and unfair competition cases (AMCU can’t offer separate figures), of which 276 were appealed and 36 were overturned. They accounted for 5% of the total number of decisions over the past 6 years (and 13% of those appealed). More than 40 cases involving AMCU were considered by the Supreme Court in 2024.

The high level of support by Ukrainian courts for AMCU decisions is a positive indicator of the institution’s credibility and the robustness of its enforcement actions. However, the extremely short duration of judicial proceedings raises concerns about the depth and thoroughness of judicial review. Effective oversight requires sufficient time for courts to conduct a detailed examination of AMCU’s reasoning, evidence and procedural compliance. If court proceedings are rushed, there is a risk that complex competition cases may not receive the level of scrutiny necessary to ensure legal certainty and procedural fairness. A more balanced approach – where judicial review remains efficient but allows for meaningful examination – would strengthen the legitimacy of AMCU’s decisions while preserving due process and the right to an effective legal remedy.

4.2. Private enforcement

4.2.1. Description of the current situation

Under Ukrainian law, parties that have suffered harm due to anticompetitive conduct have the right to seek compensation through private enforcement mechanisms, including claims for damages and injunctive relief. These claims follow the general provisions of the Civil Code, the Commercial Code and procedural laws. The Civil Code provides for liability in cases of wrongful acts causing harm and Article 224 of the Commercial Code explicitly regulates compensation claims for damages resulting from anticompetitive behaviour. Consequently, private parties may initiate legal proceedings before commercial courts to seek redress.

Currently, Ukrainian law recognises only follow-on actions in competition-related private litigation. In the absence of a decision by the Antimonopoly Committee of Ukraine (AMCU), claims must be pursued under general rules governing compensation for damages unrelated to competition law infringements.

The Ukrainian system provides for both compensatory and punitive damages, as claimants are entitled to receive twice the amount of the actual harm suffered.

To succeed in its claim, the claimant must:

• provide the decision of AMCU which stablished the existence of an anticompetitive practice, such as abuse of dominance or concerted practices

• substantiate the harm suffered and

• demonstrate a causal link between the infringement and the harm.

In private litigation AMCU decisions serve as evidence of the existence of the infringement both in cases of agreements or abuse of dominance. The burden of proof on the damages and its amount lies with the claimant. In commercial proceedings, the general standard of proof is the “balance of probabilities” (Art. 79 of the Commercial Procedural Code).

Claimants may access non-confidential information of AMCUs file that is relevant to their case. Courts may also, upon request, require AMCU to disclose all available information, including confidential data obtained during leniency applications. To protect confidential information, such proceedings are conducted in closed hearings and parties are restricted from disclosing confidential data outside the court proceeding. Chapter 9 of the Commercial Procedural Code of Ukraine defines measures of procedural coercion that the Court may take in case of breach of this obligation, including penalties but so far, there have been no cases.

AMCU and its territorial offices may participate in judicial proceedings, providing explanations and evidence on the merits of the dispute.3 However, they cannot initiate independent claims or issue binding instructions to the court, as this would conflict with their mandate to oversee competition law enforcement.

The statute of limitations for bringing a competition law damages claim is three years from the moment when the person becomes aware or should have become aware of the right to file a claim.4 It is not clear whether this implies the moment when the harm is discovered, when the infringement is declared and therefore if it is the moment when the decision is published, notified to the parties or third persons or when it becomes final.

In the case of settlements, the information received by AMCU in the course of the negotiations may only be disclosed with the consent of the defendant (Art. 46.1.6 of the Competition Law):

• The Ukrainian leniency system provides that the liability-exempted undertakings are required to compensate only their direct customers or suppliers; and

• other injured parties, provided that damages cannot be recovered from co-defendants in the same case.

Ukrainian legislation does not establish a specific mechanism for collective claims in competition law cases. However, procedural provisions allow for multiple claimants to join a single action. Additionally, the Law on Protection of Consumer Rights enables consumer associations to initiate legal proceedings to challenge unlawful actions affecting an indeterminate number of consumers and to seek injunctive relief.

There have been only a few notable cases where private enforcement has been attempted in Ukraine. AMCU currently lacks statistical data on the number of cases initiated under the private enforcement procedure, but they inform that according to the available information, the total number of cases considered by the courts for damages over the past six years did not exceed ten claims.

Box 4.3. Landmark private enforcement cases in Ukraine

One of the landmark private enforcement case deals with an abuse of dominance for excessive pricing policy of the railway network operator in Ukraine.

AMCU imposed a fine to Ukrzaliznytsia PJSC (the monopolist state‑owned rail network operator) for abuse of dominance due to unjustified overcharges. These extra charges were applied over a limited period.

Nibulon, is a leading Ukrainian agricultural company affected by the behaviour. They filed a claim for damages at the Commercial Court of Ukraine, presenting the AMCU decision that gave evidence that Ukrzaliznytsia had imposed unreasonable freight tariffs in a manner inconsistent with fair competition principles. Ukrzaliznytsia argued that its pricing policies were justified by operational costs and regulatory constraints and that the prices were not exploitative but the Court did not consider those arguments and confirmed right of the Company to claim damages arising from this competition law violation.

The damages – approximately EUR 2 million (equivalent to 66 757 UAH)–were straightforward to calculate. As a result, the court awarded Nibulon around EUR 4 million (equivalent to 133 515 UAH) in compensation. In 2018, the Ukrainian Supreme Court upheld the appeal court’s decision.

The case prompted discussions on railway tariff regulation, leading to potential reforms aimed at increasing market fairness and transparency eliminating the discriminatory approach to pricing.

Source: AMCU decision, https://amcu.gov.ua/storage/app/sites/1/imported_content/5d690bcec796a.pdf.

More recently, AMCU abuse of dominance decision on the rail transport services has generated one of the latest private enforcement follow-on cases is Zolota Nyva 1 (February 2025).

AMCU found Ukrainian Railways guilty of abusing its dominant position in the freight transportation market by imposing an unjustified service fee for the delivery and removal of railcars at low-activity stations, leading to financial losses and imposed a fine on the company.

The claimant filed a lawsuit against Ukrainian Railways, claiming double compensation for damages before the Commercial Court of Kyiv that ruled in its favour, determining that the imposition of extra charges restricted the claimant economic opportunities and resulted in financial harm. The Northern Commercial Court of Appeal and the Cassation Commercial Court of the Supreme Court upheld the decision recognising an indenisation of UAH 1 479 852.18  (equivalent to EUR 34 012).

Source: Number of the case on appealing the AMCU decision 910/15766/20, https://opendatabot.ua/court/109772648-8faa8acfbe6f9e3bdc5211cd77f77f9f.

4.2.2. Critical analysis of the system

The Recommendation of the Council of the OECD concerning Effective Action against Hard Core Cartels [OECD/LEGAL/0452] (2019[2]) from 2 July 2019, recommends that legal systems should also ensure that anyone harmed by cartels can claim compensation, with proper access to evidence, protection of leniency materials, allowance for collective claims and recognition of enforcement decisions as valid evidence in related private cases. Furthermore, limitation periods for claims should be paused during official investigations. Advocacy by competition authorities should be promoted to raise awareness and prevent collusion.

Private claims are uncommon in Ukraine because of a lack of legal awareness and judicial practice, challenges in gathering evidence, high legal expenses and volatility in legal system.

Claimants must provide extensive economic and legal analysis to prove damages, which can be costly and complex. Obtaining necessary evidence is difficult, as businesses often lack access to competitors’ internal documents.

It has been also noted by the stakeholders in the fact-finding interviews that the standard of proof in private cases is disproportionally high. Following international standards, the burden is on the claimant. They are required to demonstrate sufficiently robust and well-documented evidentiary basis proving the losses as well as to provide the court with a precise calculation of losses. Such loss quantification requirement has been noted by some of the stakeholders interviewed during the peer-reviewing process among the main obstacles that could discourage private parties to seek for damages. While the courts have authority to discover additional evidence, this requires many procedural steps, increasing thereby evidentiary burden. It is relevant to remind that in leniency cases the facts can only be disclosed with the consent of the defendant. It is also relevant to underline that the actual recognition of damages has been, at least in the cases studied, very low. All these factors reduce most of the appetite for claiming damages to follow-on actions.

It is highly recommended for Ukraine to develop a system mandating judicial authorities to inform AMCU of any competition law-related private action. This would allow streamlining the process, making it more predictable and reliable.

In the future stage of competition law reform, it is planned to implement the provisions of EU Directive 2014/104 on damages, which will provide for a regime for handling information obtained from applications for exemption from liability.

References

[1] OECD (2021), Recommendation of the Council on Transparency and Procedural Fairness in Competition Law Enforcement, OECD/LEGAL/0465, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0465.

[2] OECD (2019), Recommendation of the Council concerning effective Action against Hard Core Cartels, OECD/LEGAL/0452, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0452.

Notes

← 1.  Russia claims to have annexed Crimea, but it remains de jure part of Ukraine. Some of the institutions were relocated but some (as in this case) exist only in the text of the law.

← 2.  Article 287. Right of cassation appeal. 1. The parties to the case, as well as persons who did not participate in the case, if the court has decided on their rights, interests, and/or obligations, have the right to file a cassation appeal against: 1) the decision of the court of first instance after the appeal review of the case and the ruling of the court of appeal, except for court decisions specified in part three of this article; 2) rulings of the court of first instance specified in clauses: 3, 6 (https://zakon.rada.gov.ua/laws/show/1798-12#n3511), 7 (https://zakon.rada.gov.ua/laws/show/1798-12#n3512), 13(https://zakon.rada.gov.ua/laws/show/1798-12#n3518), 14 (https://zakon.rada.gov.ua/laws/show/1798-12#n3519), 21 (https://zakon.rada.gov.ua/laws/show/1798-12#n3526), 25 (https://zakon.rada.gov.ua/laws/show/1798-12#n3530), 26 (https://zakon.rada.gov.ua/laws/show/1798-12#n3531), 28 (https://zakon.rada.gov.ua/laws/show/1798-12#n3533), 30 (https://zakon.rada.gov.ua/laws/show/1798-12#n3535) of part one of Article 255 of this Code, after their review on appeal; 3) decisions of the court of appeal on refusal to open or close appeal proceedings, on the return of an appeal, on the suspension of proceedings, on securing a claim, on replacing a measure to secure a claim, on counter-security, on refusal to adopt an additional decision, on clarification of a decision or refusal to clarify a decision, on making or refusing to make corrections to a decision, on returning an application for review of a court decision on the basis of newly discovered or exceptional circumstances, on refusal to open proceedings on the basis of newly discovered or exceptional circumstances, on refusal to grant an application for review of a court decision on the basis of newly discovered or exceptional circumstances, on replacing a party to the case, on the imposition of a fine in the order of procedural coercion, separate rulings; 4) rulings and decisions of the court of first instance after their review on appeal and decisions of the court of appeal in bankruptcy (insolvency) cases in the cases provided for by the Bankruptcy Code of Ukraine. 2. The grounds for cassation appeal of court decisions specified in clauses 1 and 4 (https://zakon.rada.gov.ua/laws/show/1798-12#n3771) of Part 1 of this Article are the incorrect application by the court of substantive law or violation of procedural law exclusively in the following cases: 1) if the court of appeal applied a rule of law in the contested court decision without taking into account the conclusion on the application of the rule of law in similar legal relations set out in the Supreme Court’s ruling, except in the case of a Supreme Court ruling on departure from such a conclusion; 2) if the complainant has reasonably justified the need to depart from the conclusion on the application of a rule of law in similar legal relations, set out in a resolution of the Supreme Court and applied by the court of appeal in the contested court decision; 3) if there is no conclusion of the Supreme Court on the application of a legal norm in similar legal relations; 4) if the court decision is appealed on the grounds provided for in parts one and three of Article 310 of this Code (https://zakon.rada.gov.ua/laws/show/1798-12#n3945). The grounds for cassation appeal of court decisions specified in clauses 2 and 3 (https://zakon.rada.gov.ua/laws/show/1798-12#n3770) of part one of this article are the incorrect application by the court of substantive law or violation of procedural law. 3. The following are not subject to cassation appeal: 1) decisions, rulings of the court of first instance and resolutions, rulings of the court of appeal in cases where the decisions are subject to review by the Supreme Court in appeal proceedings; 2) court decisions in minor cases and in cases where the value of the claim does not exceed five hundred times the minimum subsistence level for able‑bodied persons, except in cases where: a) the cassation appeal concerns a matter of law that is of fundamental importance for the formation of a uniform practice of law enforcement; b) the person filing the cassation appeal is deprived, in accordance with this Code, of the opportunity to refute the circumstances established by the contested court decision in the consideration of another case; c) the case is of significant public interest or is of exceptional importance to the party to the case filing the cassation appeal; d) the court of first instance erroneously classified the case as minor. 4. A person who did not participate in the case, if the court decided on his or her rights, interests, and/or obligations, has the right to file a cassation appeal against the court decision only after its review in the appellate proceedings on the basis of his or her appeal, except in cases where the court decision on the rights, interests, and/or obligations of such a person was made directly by the court of appeal. After the opening of cassation proceedings on the cassation appeal of a person who did not participate in the case, but the court decided on the issue of their rights, interests, and/or obligations, such a person shall enjoy the procedural rights and bear the procedural obligations of a party to the case.

← 3.  See Article 50.1 and 3 of the Commercial Procedural Code that stablishes that “Third parties who do not make independent claims with respect to the subject matter of the dispute may intervene in the case on the side of the plaintiff or defendant before the end of the preparatory proceedings in the case or before the first court hearing if the case is considered in the procedure of simplified action proceedings, if the decision in the case may affect their rights or obligations with respect to one of the parties. They may also be involved in the case at the request of the parties to the case. (…) 3. Applications for the involvement of third parties and applications of third parties to join the case on the side of the plaintiff or defendant shall specify the grounds on which third parties are to be involved in the case.” AMCU always protects the public interest in Court but intervenes “on the on the side of the plaintiff” as a procedural aspect, which does not prohibit the AMCU from providing explanations that do not support the position of the party from which we were involved. The AMCU also can deny its participation in the case.

← 4.  The defendant has to prove that he could not become aware/was not aware and the plaintiff has to prove that the defendant was aware/could be aware. The Ukrainian Supreme’s Court in decision No 910/4088/22 from 22 August 2023 stated that “The concept of "should have known" should be understood as the impossibility of ignorance, a high probability, and the possibility of knowing about the violation of one's rights. In particular, a person has the opportunity to know about the violation of their rights if they are aware of it.”