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Predictable No More: How the AMC's New Fining Policy May Change the Decade-Long Enforcement History
Author: Sergiy Glushchenko and Pavlo Verbolyuk
Source: Lexology, 23 December 2024

Over the past decade, the Antimonopoly Committee of Ukraine (AMC) has developed a substantial enforcement record in gun-jumping cases. Between 2015, when the AMC started publishing its decisions, and 2025, it imposed over 440 fines across at least 200 cases. The dynamics of these fines, shaped by shifting policy priorities and enforcement approaches, have fluctuated significantly. Same as their amounts which ranged from a few hundred to several million euros. Nonetheless, when it comes to non-problematic foreign-to-foreign transactions, the enforcement was generally consistent and fell within predictable ranges. In 2024, however, the AMC reduced the predictable value of its past practice by redefining its fining methodology.

Early Developments (2015–2017): Waves of Amnesty Corrective Filings. In the early years of the past decade, several key policy developments shaped the AMC’s future enforcement stance. In early 2016, the Ukrainian Parliament introduced a long-anticipated amendment that increased and restructured notifiability thresholds. To improve compliance culture ahead of these changes, the AMC launched an amnesty program in late 2015, which ran successfully until early 2017. It allowed companies to correct their records by notifying past transactions in exchange for nominal fines. This resulted in waves of corrective filings during the 2015–2017 period, and around half of all fines imposed by the AMC for gun-jumping during the decade. Still, only a handful of these fines exceeded EUR 15,000, including one (then the highest) fine of around EUR 100,000 imposed in 2016.

Post-Amnesty Period: Fewer Cases, Larger Fines (2017–2020). After the amnesty program expired in 2017, the number of fines dropped, reaching a record low of only around 10 fines in 2019. In contrast, the average fine value increased, signalling a shift toward fewer but more substantial penalties. Between 2018 and 2020, the AMC issued over 80 fines, but fines exceeding EUR 20,000 remained rare (only four, including EUR 33,000, EUR 470,000, and two fines of approximately EUR 200,000 each).

High-Value Fines Become More Common (2021–2022). In the following few years, enforcement remains steady and close to 2017-2020, but high-value fines became more common. In 2021, fines from a higher range included eight fines totalling EUR 260,000, one fine of EUR 435,000, and two exceptional fines exceeding EUR 2 million. In 2022, high fines included around EUR 30,000 in one case and two fines of EUR 120,000 each in another.

Methodology. In terms of the methodology, normally, the AMC would not disclose how exactly it calculated fines in the mentioned decisions. However, in non-problematic foreign-to-foreign cases, it likely followed its old non-binding fining guidelines. Despite the lack of transparency, the amounts of the fines in many of such cases can be traced back to fixed fining ranges envisaged in those guidelines for amnesty or non-problematic cases without overlaps. Relatedly, foreign-to-foreign transactions would usually not appear in the higher range fines. It seems that the high fines were reserved for local high-profile transactions with political context. It is also harder to link them with the AMC's non-binding fining guidelines. By way of example, many of the high fines had no substantive issues, but this did not prevent the AMC from imposing six-to seven-digit fines. A prominent example is the case with the fine exceeding EUR 2 million despite it concerns the transactions having no overlaps in Ukraine.

A Paradigm Shift: New Fining Guidelines (2023-2024). In 2023-2024, the overall numbers for fines remain close to those of previous years. Over two years, the AMC has imposed more than 90 fines, most of which were again below EUR 20,000. However, the previously observed (and logical) trend of a more lenient approach toward non-problematic foreign-to-foreign cases is starting to vanish. The AMC's higher fines, which included EUR 625,000, EUR 1,250,000, alongside others ranging from EUR 50,000 to EUR 150,000, start to appear in cases with no reasonable nexus to Ukraine. The most recent example is the fine of around EUR 100,000 in total in a transaction that concerned formation of the JV among Electricite de France, Nebras Power, Sojitz Corporation, and Kyuden International Corporation in Uzbekistan in 2022.

Interestingly, in its press release on this case, the AMC noted that they calculated the fines relying on its new (binding) fining guidelines issued in 2024. The application of these new fining guidelines in the above case is debatable, as the AMC established the infringement based on the old merger control rules that were effective in 2022. The AMC's old fining guidelines - which could have resulted in lower fines – were also still effective back then.

In any case, the new fining guidelines, along with such enforcement practice present a shift in the AMC's approach to gun-jumping in non-problematic foreign-to-foreign transactions. Unlike the old non-binding guidelines, which had fixed fining ranges for such cases, the new binding ones simply paraphrase the statutory provisions by saying that in non-problematic cases with no overlaps the fines should not exceed the statutory limit of 5% of the undertaking's global turnover. Such "guidelines" offer the AMC much more flexibility and discretion to impose higher fines in foreign-to-foreign cases, than any real guidelines to businesses implementing such deals.

Outlook. The AMC’s evolving enforcement strategy reflects its effort to balance deterrence and compliance in a rapidly changing regulatory landscape. The shift from predictable, fixed fining ranges to broader discretion under the 2024 guidelines may mark a significant turning point, particularly for foreign-to-foreign transactions. This enhanced flexibility could further elevate the stakes for global businesses engaging in transactions with no Ukrainian nexus. 

Read on the Lexology

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