Act of the RF Government № 314 “On the Approval of the Regulations of the State Control over Economic Concentration in the Use of Water Bodies”

Act of the RF Government of 08.04.2009 № 314

“On the Approval of the Regulations of the State Control over Economic Concentration in the Use of Water Bodies”

REGULATIONS

OF THE STATE CONTROL OVER ECONOMIC CONCENTRATION

IN THE USE OF WATER BODIES

1. The present Regulations determine the procedure of the state control over economic concentration in the use of water bodies.
2. The state control over economic concentration in the use of water bodies is exercised by the Federal Antimonopoly Service (hereinafter – antimonopoly body).
3. In the present Regulations there are used the following basic definitions:

a)       “person” – private entrepreneur, commercial entity, as well as non-commercial entity, conducting activity, that yield income;

b)      “transaction” - granting  to a person (a group of persons) water bodies  of the federal property, property of the subjects of the Russian Federation, property of municipal formations or parts of such water bodies, for use on the basis of water use agreements;

c)       “other actions” – granting to a person (a group of persons) water bodies of the federal property, property of the subjects of the Russian Federation, property of municipal formations or parts of such water bodies, for use on grounds of the decisions on granting water bodies for use, as well as actions of a person (a group of persons), as a result of which the person (the group) obtains a right to use a water body;

d)      “economic concentration” – transactions, other actions, the execution of which affects the state of competition;

e)       “a group of persons” – as defined by Article 9 of the Federal Law “On Protection of Competition”.

1. The antimonopoly body must be notified:

a)       by a person (a group of persons), that he (they) was (were) granted for use, in the manner established, a part of the surface area of the water body, if such person (group of persons) obtains the right to use more than 100 thousand square meters of the surface area of the water body, provided that, before  getting it, such person (group of persons) did not have the right to use a part of surface area of the water body or enjoyed the right to use less than 100 thousand square meters of surface area of this water body – not later than in 45 days since the date of effecting such transactions, other actions;

b)      by a person (a group of persons), who got for use not less than 100 thousand square meters of surface area of the water body for use, if the square of the water body which is the subject of the transaction or inter-related transactions, other actions, exceeds 100 thousand square metres of the surface area of this water body – not later than in 45 days after the date of effecting such transactions, other actions;

c)       by a person (a group of persons) about purchasing voting shares of a joint-stock company by the person (group of persons), having less than 50 per cent of voting shares of this joint-stock company, if  as a result of such purchase this person (group of persons) gets the right to dispose of more than 50 per cent of such voting shares of the joint-stock company, that owns the right  to use a part of surface area of the water body, which square exceeds the size limit, envisaged  by sub-items “a” and “b” of the present item – not later than in 45 days after the date of effecting such transactions, other actions;

d)      by a person (group of persons), disposing of less than 50 per cent of shares in the charter capital of a limited liability company, about purchasing participatory shares in the charter capital of this limited liability company, if as a result of such purchase this person (group of persons) gets a right to dispose of more than 50 percent of the mentioned participatory shares of the limited liability company, that owns a right to use a part of surface area of the water body, which square accedes the size limit, envisaged by sub-items “a” and “b” of the present item – not later than in 45 days after the date of effecting these transactions, other actions;

e)       by a person (a group of persons) about purchasing by him (them), as a result of one or several transactions (including on grounds of the agreement of trust administration of property as well as agreement of joint activities or appointment agreement), the rights, allowing to determine the conditions of conducting entrepreneurial activity by the person or exercise functions of its executive body, if as a result of such purchase this person (group of persons) obtains the right to have control over the person, who owns  the right to use a part of the surface of water body, which square exceeds  the size limit, envisaged by sub-items “a” and “b” of the given item, - not later than in 45 days after the date of effecting such transactions, other actions;

f)                    by a person (group of persons) regarding the merger or acquisition of persons, if as a result of such merger or acquisition the newly formed or reorganized person (a group of persons) obtains the  right to use a part of the surface of water body, which square accedes the size limit, envisaged by sub-items “a” and “b” of the present item, - not later than in 45 days of the date of merger (acquisition).

5.The requirement, specified in item 4 of the present Regulations, concerning notifying the antimonopoly body does not apply to effecting transactions, other actions on ponds and water-logged open pits.

6. One of the persons, interested in executing the transactions, other actions, envisaged by item 4 of the present Regulations (hereinafter – applicant), submits to the antimonopoly body a notification of executing the transaction, other actions (hereinafter – notification), as well as:

a)       as for a juridical person – copies of constitutive documents, attested in the manner established, as for a natural person – the data of the document, verifying his identity, indicating the full name, series and (or) number of the document, date and place of its issue, the name of the body which issued it, as of the date of the notification submission;

b)      copies of the following documents, attested in the manner established:

agreement of water use – in case the right to use the water body is granted in accordance with the agreement;

decision to grant the water body for use – in case the right to use the water body is granted in accordance with Article 21 of the Water Code of the Russian Federation;

c)       data referring to the main indexes of business activities, main buyers (consumers) of the production, works (services), as well as of purchases of the production, works (services), raw materials and components according to the forms, determined by the antimonopoly body;

d)      copies of the documents, confirming the right to conduct certain types of activities, if in accordance with the legislation of the Russian Federation there are required special permits to conduct them;

e)       the list of persons, pertaining to the same group as the applicant, and indicating the grounds on which such persons pertain to this group, according to the form, determined by the antimonopoly body;

f)        the list of persons, pertaining to the same group of persons as the persons specified by item 4 of the present Regulations, and indicating the grounds, according to which such persons pertain to this group, by the form, determined by the antimonopoly body, or a written statement, specifying, that the applicant has no such data.

7. In course of 30 days since the date of receiving the notification, documents and data, envisaged by item 6 of the present Regulations, the antimonopoly body must study the notification and in written form inform the applicant of the decision adopted.

8. Subsequent to the results of studying the notification, documents and data, envisaged by item 6 of the present Regulations, the antimonopoly body takes one of the following decisions:

a)       to take into advisement the notification, if the transaction, another action, specified in the notification, have not resulted and may not result in the restriction of competition;

b)      to extend the period of studying the notification due to the necessity of its additional studying, as well as obtaining additional information to take the decision, envisaged by sub-items “a” and “c” of the present item subsequent to the results of studying the notification, if it is established, that the transaction, another action, stated in the notification, may result in the restriction of competition, including as a result of reaching or consolidating the dominant position by the person (group of persons);

c)       to take into advisement the notification and concurrently issue the applicant the order, envisaged by item 2, Part 1, Article 23 of the Federal Law “On Protection of Competition”, regarding executing actions, aimed at ensuring competition.

9. The period of time, specified in item 7 of the present Regulations, may by extended by the decision, envisaged by sub-item ”b”, item 8 of the present Regulations, not for more than 2 months. In case such decision is taken, the antimonopoly body posts the information regarding the transaction, another action, specified in the notification, on its official website in Internet. The persons interested are entitled to submit to the antimonopoly body the data on the influence of such transactions, other actions over the state of competition.

10. The decision, envisaged by sub-item “c”, item 8 of the present Regulations, is taken by the antimonopoly body in case the transactions, other actions, stated in this notification, have resulted and (or) may result in the restriction of competition.

11. In case the transactions, other actions, specified in sub-item “c” – “f”, item 4 of the present Regulations, are subject to the state control over economic concentration, envisaged by Article 7 of the Federal Law “On Protection of Competition”, one of the persons, interested in their execution, submits to the antimonopoly body the documents and materials, in the manner, established by Article 7 of the mentioned Federal Law. In this case the notification, envisaged by sub-items “c” – “f”, item 4 of the present Regulations in the manner, established by the present Regulations, is not required.