The Supreme Court outlined the criteria for confirming anti-competitive collusion among tender participants

The Commercial Cassation Court, a division of the Supreme Court, in its ruling dated 25 June 2026, in case No. 910/7614/25, reviewed a dispute concerning an appeal against a decision by a territorial branch of the Antimonopoly Committee (AMC). The AMC's decision had found a business entity guilty of engaging in anti-competitive coordinated actions during a public procurement procedure.

This ruling affirms the Supreme Court's methodology for evaluating evidence in such disputes and establishes the criteria by which a collection of indirect evidence may indicate coordinated competitive behaviour among procurement participants.

Circumstances of the Case

The company initiated legal proceedings in the commercial court, seeking to invalidate the decision of the Northern Interregional Territorial Branch of the Antimonopoly Committee of Ukraine. This decision had found the company guilty of committing anti-competitive coordinated actions that distorted the outcomes of a public procurement process.

The AMC also levied a fine of UAH 33,000 against the company.

The AMC reached its conclusion after analysing a body of evidence, which included: the presence of a shared employee; the use of identical IP addresses during participation in the procurement; the management of bank accounts; the submission of financial reports; existing business relationships between participants; the use of documents with identical metadata; and the uploading of tender proposals within a narrow timeframe.

The Commercial Court of Kyiv dismissed the claim, a decision subsequently upheld by the appellate court. The company then lodged a cassation appeal.

Position of the Supreme Court

The Supreme Court has clarified that to classify a business entity's actions as anti-competitive coordinated actions, it is not necessary to prove the actual occurrence of consequences such as the prevention, elimination, or restriction of competition. This also applies to demonstrating infringement of the interests of other business entities (competitors, buyers) or consumers, including causing them harm (losses) or other genuine violations of their rights or interests, or the occurrence of other relevant consequences.

Furthermore, the failure of business entities to achieve the objective for which they coordinated their competitive behaviour, due to reasons and circumstances beyond their control, does not negate the existence of an offence under Article 6 of Law No. 2210.

The Court noted that for the AMC to recognise a violation of economic competition protection legislation, it is sufficient to establish and prove the intent of business entities to agree (coordinate) their competitive behaviour. This includes, for example, the exchange of information during the preparation of tender documentation, which either leads or may lead to an advantage for one of the participants during the competitive selection process to determine the winner of the procurement procedure.

In such cases, the negative consequence is the very distortion of the bidding results due to the coordinated behaviour of competitors. Coordinated behaviour among tender participants fundamentally contradicts the essence of competition.

The Supreme Court also emphasised that competitiveness during bidding is ensured by confidentiality of information. Considering the content of Articles 1, 5, and 6 of Law No. 2210, the competitiveness of procurement participants implies independent and autonomous actions from each, with an obligation to prepare their proposals separately and without exchanging information.

The Court separately drew attention to the approach to evaluating evidence.

The Supreme Court stated that Law No. 2210 does not make the application of consequences for coordinated anti-competitive actions conditional on a "joint agreement to participate in the bidding with the aim of eliminating competition."

Therefore, it is quite clear that such an agreement is unlikely to have a tangible form, such as written agreements or other documents. Consequently, courts should examine the question of the presence or absence of coordinated anti-competitive actions based on the entire set of circumstances and evidence established and examined in the case, taking into account their credibility and interrelation, in accordance with Article 86 of the Commercial Procedural Code of Ukraine.

The Court noted that the cumulative assessment of the evidence presented by the AMC in the contested decision could be considered more credible in confirming the coordinated actions specifically by the plaintiff, but only if it completely excluded the possibility of the simultaneous existence of circumstances which, according to the AMC, also confirmed such coordination.

Legislation on economic competition protection does not limit the AMC in collecting information in a case to only after the relevant case has been initiated.

When considering applications and cases concerning violations of economic competition protection legislation, conducting inspections, and in other cases provided by law, the AMC may require information, including that with restricted access, from business entities, associations, authorities, local self-government bodies, administrative-economic management and control bodies, their officials and employees, and other individuals and legal entities.

The Committee has the right to collect and analyse information, including on its own initiative, which may form the basis for the contested AMC Decision. However, courts assess such information within the context of Articles 74, 76-79 of the Commercial Procedural Code of Ukraine.

The Supreme Court emphasised that it is sufficient to establish the mere fact of agreement on competitive behaviour, which may have a negative impact on competition.

According to the conclusions of the lower courts, with which the Supreme Court agrees, the facts established by the AMC Branch and verified by the Committee, when taken together, cannot be the result of a random coincidence of circumstances or a consequence of objective factors. Therefore, the evidence provided by the AMC Branch is confirmed and sufficient for the conclusions set out in the AMC Branch decision and the subsequent Committee decision.

Thus, the complainant's arguments regarding violations of legal norms by the lower courts in adopting the contested judicial decisions were not confirmed for the reasons stated in this ruling.

The Supreme Court dismissed the company's cassation appeal and upheld the decisions of the lower courts.

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