15 April 2020
On 31 March 2020, the Ukrainian Supreme Court upheld the first decision of the Antimonopoly Committee of Ukraine (the "AMC") on the unlawfulness of state aid and concluded that the AMC is not required to analyse the effect of aid on trade between Ukraine and the EU in state aid cases.
The state aid regime was introduced in Ukraine based on the requirements of the EU-Ukraine Association Agreement under which the Ukrainian state aid rules shall be in line with the EU's principles. Nevertheless, unlike the EU's regime, the definition of state aid provided in the Law of Ukraine "On State Aid to Undertakings" is missing the criterion of the effect on trade between Ukraine and the European Union.
The Supreme Court upheld the position of lower courts that, under the Ukrainian state aid laws, the AMC is not entitled to analyse the effect of aid on trade between Ukraine and the EU in state aid cases, and the respective Ukrainian laws do not provide for the effect on trade amongst the criteria for assessment of state aid.