YANA SKLYAROVA: THE RULING OF THE CONSTITUTIONAL COURT ON PARALLEL IMPORT CAN FORM THE BASIS FOR FAS POSITION

It will allow considering particular actions of the right-holders for selling their goods under not only the Civil Code but also the antimonopoly law

On 19 November, Deputy Head of FAS Department for Control over Advertising and Unfair Competition took part in the VI Anti-Counterfeit International Forum.

She outlined the legal assessment of the work of the so-called “parallel importers” given by the Constitutional Court of the Russian Federation. According to Yana Sklyarova, the antimonopoly body has been promoting this position for quite a while.

The speaker reminded that FAS had already issued warnings to some right-holders on the market of motor vehicle parts who refused to consider applications from “parallel importers” for permission to import consignments of goods to Russia. Having obtained a legal interpretation that supports the approach of the antimonopoly body, FAS can investigate cases on violating the Federal Law “On Protection of Competition” after the violators failed to execute the warnings.

“We emanate from the points highlighted by the Constitutional Court of the Russian Federation in its Ruling. The main one is a possibility to consider particular actions of right-holders for selling their goods as abuses, therefore, evaluating them not only under the Civil Code but also the antimonopoly law”, pointed out Deputy Head of FAS Department for Control over Advertising and Unfair Competition.

In the speaker’s opinion, such FAS position is closely related to its practice because importers of various level often approach FAS. They have to deal with a situation when attempting to import right-holders’ goods to Russia they receive letters from the right-holders or their representatives who recommend to approach the letter authors directly about acquiring the goods.

“In light of the Ruling of the Constitutional Court such actions have signs of abuse by right-holders since they can lead to adverse consequences on the relevant markets. In our view, the concept of public interest is rather broad. It can also concern access of the population to the goods assortment, which is not artificially limited, and proper competition of prices and brands”, underlined Yana Sklyarova.

She summed up: “The Ruling of the Constitutional Court can form a legal foundation for the position and practice of the competition authority and an important milestone in investigating parallel import cases”.