ANDREY TENISHEV: THE BEST WAY FOR COMPANIES NOT TO INCUR COSTS IS NOT TO ENTER CARTEL AGREEMENTS

Representative of the FAS Russia told about violations in the pharmaceutical industry and work of the authority during COVID-19 pandemic

Andrey Tenishev, Head of the Anti-Cartel Department of the FAS Russia, took part in the Eurasian virtual pharmaceutical summit. In his speech, the speaker discussed how pandemic affected the state of competition and the number of violations in the pharmaceutical market.

In particular, in comparison with the first half of 2019, the number of cases initiated in the pharmaceutical markets for cartels and other anticompetitive agreements in 2020 increased by 8%. According to the FAS Russia, most often unscrupulous market participants tried to make money on disinfectants and personal protective equipment.

“During a pandemic, we began to use more preventive measures. For those who did not listen to our warnings, turnover fines were imposed. Taking into account the difficult epidemic situation, on the contrary, they tried to support the participants of good business in the current circumstances. The current norms of the Code of Administrative Offences allow us, taking into account the financial situation of the person and other circumstances, to defer payment of the fine, which we did this spring, taking into account the changes in the economic situation against the backdrop of the pandemic,” said Andrey Tenishev.

He recalled that today the maximum term for the payment of fines by installments in accordance to the Code of Administrative Offences of the Russian Federation is 3 months.

The question “can any actions of companies during a pandemic be considered a conditionally aggravating circumstance”, Andrey Tenishev commented as follows:

“For those who decided to take advantage of the situation and illegally make money, I would apply the most severe sanctions and equate such actions with looting. However, unfortunately, in the current law there is no such aggravating circumstance as committing an offense during a difficult economic situation. Perhaps we should think about it.”

Andrey Tenishev also discussed the issue of evaluating evidence and establishing requirements for its specific form or media. He said that the FAS Russia came to the conclusion that there is no need to introduce certain Standards of Proof in cartel cases. All current procedural law provide for the assessment of evidence by the court according to its inner conviction, based on a comprehensive, complete, objective and direct study of the evidence available in the case. Courts have to assess the relevance, admissibility, reliability of each piece of evidence, as well as sufficiency and interrelationship of evidence in its entirety.

“The general rule for the Russian legal system is that a decision should be made on the basis of a free assessment of evidence and the internal conviction of a court or law enforcement officer. If someone wants to introduce certain standards of proof, including in cases of cartels, he will have to change the legal system in the Russian Federation,” concluded representative of the FAS Russia.

“The introduction of Standards of Proof in the courts may have some short-term positive effect, but in the long term it will lead to the degradation of our judicial system,” he said.

In his speech, the Head of the Anti-Cartel Department discussed the effectiveness of compliance in pharmaceutical companies. He recalled that the main effect of any compliance system is not to mitigate the punishment, but to create an environment of intolerance to violations of the law in the company and reduce the risks of offenses.

“As for popular and effective measures, I reiterate that the best way for companies to avoid incurring costs is not to enter into anticompetitive agreements,” summed up Andrey Tenishev.