IMPROVEMENTS OF THE DRAFT FIFTH ANTIMONOPOLY PACKAGE WILL CONTINUE

Said deputy Head of FAS Andrey Tsyganov at a Conference in St Petersburg

On 14 May 2018 the Corporate Counsel Association organized the VIII Annual research-to-Practice Conference “The Law of Non-Indifferent. Intellectual property in the digital economy” as a satellite event of St Petersburg International Legal Forum. Deputy Head of FAS Andrey Tsyganov discussed the key provisions of the fifth antimonopoly package.

Structural changes in the economy are getting increasingly more rapid, influencing all processing, including political and social ones. Digital technologies are penetrating all spheres of the physical world. The antimonopoly body used to open proceedings against oil companies and large industrial enterprises; recently FAS has been investigating cases against “Google”, “Apple” and “Microsoft”, considering “Bayer-Monsanto” and “Yandex-Uber” merger.

Development of digital economy requires reconsidering approaches to antimonopoly regulation and enforcement. According to Andrey Tsyganov, the amendments are necessary because some standard categories of antimonopoly regulation do not work on digital markets.

For instance, FAS proposes to introduce particular criteria in order to classify owners of large infrastructure platforms, internet-platform as dominant economic entities. A term of “price algorithm” will be added, based on which companies analyze markets and estimate the costs of their goods and services. Thus, the law will have additional admissibility criteria, when the antimonopoly authority, having analyzed a particular platform will be able to ascertain potential for an anticompetitive cartel or its absence.

At the same time, as Deputy Head of FAS pointed out, “coordination using price algorithms can be allowed under the general admissibility rules”.

The concept of “network effects” also will be introduced in the law: data enabling to influence general conditions of goods turnover on the market.

The fifth antimonopoly package implies new approaches to control over economic concentration: there will be a criteria for pre-approving transactions that exceed 7 billion RUB, and a new type of injunction aimed at eliminating discriminatory access to data, including, data on consumers.

FAS also proposes to formalize additional requirements to control economic concentration transactions related to acquiring technologies and other intangible assets. It concerns abolishing the so-called antimonopoly immunities for actions and agreements with regard to the results of intellectual activity that are currently specified in the Law “On Protection of Competition”. A relevant law is already drafted.

Andrey Tsyganov also emphasized that approaches to control execution of FAS injunctions are changing. Deputy Head of FAS commented on the forthcoming amendmen6ts: “It is expected that when an injection is not executed the antimonopoly authority should be able to file a claim to Court to allow using the results of intellectual activity, owned by the person to whom the injunction was issued, in the Russian Federation in the interests of competition development.  FAS also will be able to request Court to prohibit turnover of goods in the Russian Federation that are produced and (or) sold by the person to whom the injunction was issued”.

“The “digital package is being actively discussed and it is constantly altering. The initial version and the version that we have now are two different draft laws. And these improvements will go on. I think that the today’s event and the events of the International Petersburg Legal Forum give a good opportunity to once again discuss the forthcoming amendments publically”, summed up his speech Andrey Tsyganov.

"Intellectual property is one of the most valuable assets of any rights holder, enabling to enhance the company’s competitive ability on the market, protecting business and acting as a reputation-creating tool", stated Alexandra Nesterenko, President of “Corporate Counsel Association” Non-Profit Partnership.