LARISA VOVKIVSKAYA: AN EFFICIENT SYSTEM OF PRIVATE ACTIONS IS A POWERFUL WEAPON AGAINST MONOPOLISM

Deputy Head of FAS Legal Department Larisa Vovkivskaya was a speaker at a regional workshop of FAS regional bodies of the Far East Federal District “On implementing the National Competition Development Plan in the Russian Federation” in Yakutsk on 25 July 2018. She focused on recovery of damages incurred as a result of violating the antimonopoly law.

Larisa Vovkivskaya reminded: Article 15 of the Civil Code specified that under a general rule a person whose right was infringed can request full compensation of damages. If damages were caused through abusing dominance, unfair competition, anticompetitive agreements, violations of the antimonopoly law, the company can file a lawsuit to recover them.

Part 3 Article 37 of the Federal Law “On Protection of Competition” provides explicitly for the right to request damage recovery, including loss of expected gain.

FAS distinguishes two types of damages:

• Damages caused by charging an excessive price – monopolistically high, overrated by cartels, “soared” due to an unreasonable reduction in the sales volume, unreasonably different from prices for other market participants, prices contrary to the pricing procedure established by regulations, payments for unfavourable, irrelevant to the contract subject matter, additional services, etc.

• Damages caused by pushing away form the market, reducing the market share of the injured or creating obstacles for market entry.

“Unfortunately, damage recovery is used in Russia extremely rarely”, points out Larisa Vovkivskaya.

In her opinion, it happens because of the inequality of the parties; complexity of proving the size of damages and loss of expected gain caused by violating the antimonopoly law; low efficiency of the current procedural mechanisms of judicial protection. No clear and understandable methods of damage evaluation exist.

Deputy Head of FAS Legal Department stated that to recover damages from the antimonopoly violator, a claimant must prove the fact of the antimonopoly violations, the fact of damages (including the size) and a cause-and-effect relationship between the violation of the antimonopoly law and the damages incurred.

“Lack of evidence even for one of the above circumstances may lead to rejection of a claim”, explainedLarisa Vovkivskaya.

She shared positive examples from FAS practice when Court allowed damage recovery claims.

FAS believes that an efficient system of private actions is a powerful weapon against monopolistic activity. Therefore, the practice of recovery of damages caused through violations of the antimonopoly law should be developed.  FAS is ready to actively work at Courts on damage recovery claims.

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