The Hottest Ukrainian Antitrust Case of the Summer: Kovalska vs the AMC

The war has triggered a sweeping wave of asset consolidation in Ukraine. Markets are undergoing major restructuring, large players are scaling up, and assets are frequently changing hands at a fast pace. As a result, antitrust oversight of large M&A deals is becoming a top priority, especially in highly concentrated sectors with strategic importance for the country's recovery.

CRH-Dyckerhoff: One of the Largest Wartime Deals

One of the most notable deals in recent years is the cement market consolidation. The Irish giant CRH acquired the Ukrainian assets of the Dyckerhoff group (previously owned by Italy’s Buzzi), including two cement plants. After this acquisition, CRH’s combined market share in the Ukrainian cement market reached approximately 45%, reducing the number of major players from four to three, and effectively creating a duopoly, since CRH’s largest competitor holds a similar market share.

Recognizing potential risks to competition, the Antimonopoly Committee of Ukraine (the AMC) initiated a Phase II investigation, conducted its market study, surveyed market participants and cement consumers, and eventually approved the concentration with a set of binding commitments. These included attracting an institutional minority investor, which is allegedly to be the EBRD, and appointing independent management, not affiliated with CRH, to the former Dyckerhoff assets.

During the investigation, some market players – particularly the Kovalska Group, a leading national producer of ready-mix concrete and thus one of the largest cement consumers – argued for the prohibition of the merger. Kovalska highlighted risks of market monopolization by CRH, described potential adverse market and consumer impacts due to CRH’s dominance and considered the proposed remedies insufficient and ineffective.

A (Precedent-Setting?) Appeal Against AMC's Clearance Decision

It was clear from the outset that Kovalska sought to block the CRH-Dyckerhoff deal. The question remains unclear whether this was an industrial conflict or a battle for control over Dyckerhoff’s assets. Anticipating the AMC’s final decision, Kovalska challenged in court the agency’s refusal to admit the company as a third party to the case. The Supreme Court ultimately sided with the AMC.

The court’s position centered on these arguments: although Kovalska accounted for roughly 10% of cement consumption, its rights were not violated during the concentration review. The AMC had duly surveyed all interested parties and taken Kovalska’s concerns into account.

The court also noted a tactical misstep: the lawsuit was filed by the holding company of the group, which does not directly operate on the cement or concrete markets. Since the concept of a "single economic entity" does not apply to this specific procedural issue, the claimant was deemed procedurally improper, as the holding company’s rights were not directly affected.

But the story did not end there. After the AMC had formally approved the concentration, Kovalska filed a new lawsuit challenging the merger decision at hand. This marked a virtually unprecedented step in Ukraine’s antitrust history, as such decisions had rarely, if ever, been appealed.

Kovalska’s new filing offered a few substantive or procedural developments. The company again claimed the AMC had insufficiently examined the functioning of the ready-mix concrete market and failed to consider the deal’s negative consequences. The main new allegation was that CRH had already breached its remedy commitments by appointing a person affiliated with CRH to the supervisory board of the former Dyckerhoff assets, despite the fact that those assets required independent oversight.

Though a lower court unexpectedly ruled in favor of Kovalska, the appellate court overturned that judgment in late June, upholding the AMC’s clearance. The court affirmed that the AMC had adequately addressed competition risks and that the imposed remedies were sufficient to mitigate negative risks for competition.

Kovalska has filed a cassation appeal, which the Supreme Court is expected to hear in autumn. However, given the Court’s reasoning in the initial “third party” case, a favorable ultimate ruling for Kovalska appears unlikely.

What Does This Mean for Business?

Despite the AMC’s favorable outcome, the implications of this case reach far beyond the cement market. It can reshape the landscape for M&A transactions and antitrust policy in Ukraine.

1. Strategic M&A deals are entering a zone of regulatory turbulence

Even AMC-approved transactions can now be challenged in court. Legal preparation must account not just for regulatory compliance but also for potential post-deal litigation. Market definitions must be exhaustive, so the AMCU can pre-emptively address even speculative risks and minimize litigation exposure and the chance of legal challenges from affected competitors or consumers.

This creates a new risk factor that must be incorporated at the term sheet stage, especially when your market has its own "Kovalskas". New best practices should include: antitrust stress tests before submission, competitor-focused regulatory intelligence, internal “market-testing” of proposed commitments, post-deal compliance systems, and litigation risk management strategies. Public affairs and communication strategies will also play a growing role.

2. AMC will tighten scrutiny over concentrations in strategic sectors

Antitrust oversight is already becoming stricter in consolidated markets like energy, construction materials, telecom, fuel, and agriculture. Businesses should prepare for deeper market analyses, longer review periods, and heightened AMCU scrutiny in these strategic sectors.

Even relatively “minor” deals that don’t breach the 35% statutory monopoly threshold can trigger Phase II investigations, especially in markets where the number of players is reduced, existing players have small shares, or vertical dependence exists across adjacent markets.

3. AMC behavioral remedies will no longer be viewed as formalities

Historically standard commitments like “do not reduce output,” “do not inflate prices,” or “do not discriminate against consumers” may no longer suffice in deals that reshape market structures and will be met with scepticism by the AMC and key stakeholders. Once seen as formalities, such obligations are becoming substantive risk factors – from now on the proposed remedies must be realistic and enforceable, as their implementation will be closely watched by the competitors and courts.

For example, the proposed commitment to sell a 25-28% minority stake in CRH’s cement assets to an independent investor (even with veto rights) was criticized by Kovalska and others as insufficient (but ultimately accepted by the AMC). Kovalska argued, that unlike full divestitures, this quasi-structural commitment doesn’t redistribute market power to independent players or enable new market entry.

Proper design and monitoring of commitments will now be a critical part of post-merger integration. Big players must embed compliance into their operating models to avoid the risks of approval annulment or hefty fines.

4. AMC clearance no longer guarantees market legitimacy

The Kovalska case proved that regulatory approval alone doesn’t guarantee smooth deal closure: key stakeholders, especially competitors and major customers, must perceive the deal as fair. Stakeholder management should now be a core part of deal planning and filing strategy, both to secure AMC approval and to defend the transaction in court if necessary.

5. Judicial activism may become a driving force in shaping antitrust rules

Judicial review is becoming a real element of market competition. Although courts formally uphold the AMC decision and expectedly reconfirmed that the economic assessment of the merger, its potential effects, and the proposed commitments fall entirely within the discretion of the AMC, they are increasingly probing the substance of merger control decisions and setting new standards. When interpreted wisely, this evolving jurisprudence can be a new resource and powerful tool for both the regulator and market players to shape antitrust strategies more precisely.

Importantly, the Kovalska case opens that Overton window for competitors to use litigation as a tactical tool in harmful mergers. If businesses previously saw lawsuits against AMC merger approvals as hopeless, this case has reset expectations. Litigation can now be used to delay, block, or renegotiate deals – particularly in concentrated markets where rivals seek to preserve their positions or extract concessions from a newly consolidated player.

In Summary

The Kovalska case proves that you can’t simply pour competition into concrete. It's not just about a single company's win or loss. It signals a shift in Ukraine’s antitrust landscape and evolving rules of the game.

Even though the courts ultimately sided with the AMC, their rulings laid the foundation for more vigorous enforcement of competition law through litigation. For businesses, the lesson is clear: you must monitor competitors’ deals, track commitments, and be ready to litigate – armed with sound legal strategy, proper market studies, economic analyses, and compelling evidence of potential harm.

With the right preparation, litigation in merger cases is not just possible, it may become the X factor in further advancing your market position.