FAS EXPLAINED APPROACHES TO ANALYSING THE STATE OF COMPETITION

The document is drafted by a joint Working Group of competition authority and the “Corporate Counsel Association” Non-Profit Partnership

On 10 April 2019, FAS Presidium approved No. 17 Explanations “On some aspects of analyzing the state of competition”. It was devised for the purposes of unified application of the antimonopoly law when analyzing the state of competition.

The document is based on a review of the enforcement practice of antimonopoly bodies and Courts.

No. 17 Explanations covers determination of stages of analyzing the state of competition, information requirements, study time intervals, product and geographic market boundaries, categories of economic entities, estimation of market volume and market shares of economic entities, the level of concentration, entry barriers, establishing dominant positions, evaluation of the state of a competitive environment on the market.

The Explanations also give the specifics of analyzing the state of competition in the cases opened upon signs of violations in the field of anticompetitive agreements, unfair competition and competitive bidding (Articles 11, 141 - 148, 15, 16, 17, 171 and 18 of the Federal Law “On Protection of Competition”).

FAS points out that analyzing the state of competition is a mandatory stage of investigating every case on violating the antimonopoly law regardless of the elements of the violation. The findings of such an analysis are included in written evidence on cases and separately doe not predetermine ascertaining a fact of violating the Federal Law “On Protection of Competition” or absences of such violations.

Head of FAS Legal Department Artem Molchanov said: “The Explanations were drafted on one of the key elements of antimonopoly regulation. A consensus has been reached with the expert and business communities. Excerpts on principal points, particularly, for the legal community, the judicial system, FAS regional Offices, are given”.

Alexandra Nesterenko, President of the Corporate Counsel Association, informed: “CCA members believe that No.220 FAS Order “On approving the procedure for analyzing the state of competition on the market” of 28 April 2010 will require correction after amending the Federal Law “On Protection of Competition” in line with the “fifth antimonopoly package”. Meanwhile, questions have accumulated that need explanations. FAS, together with the Corporate Counsel Association summarized the issues outlined in the new Explanations of FAS Presidium “On some aspects of analyzing the state of competition”. Hopefully, the document will bring legal certainty and will help our members. On behalf of all CCA members I’d like to express gratitude to Head of FAS Legal Department Artem Molchanovfor the well-coordinated and high-performance work”.