ARBITRATION COURT SUPPORTED FAS POSITITON IN A DISPUTE WITH “PENENZA” JSC

“Penenza” JSC and “Brio Finance” Ltd. entered into an oral agreement, which could restrict competition on the market of tender crediting

Earlier, on 14 December 2018, FAS Commission, comprising representatives of the antimonopoly body and the Bank of Russia, unanimously concluded that actions of “Penenza” JSC and “Brio Finance” Ltd. violated the Federal Law “On Protection of Competition” (case No.1-11-211/00-07-17). For instance, having the rights of the service administrators for “Credit financing of auction security” of “Sberbank-AST” CJSC, the companies reached oral arrangements, the purpose of which was to prevent access of “Sovkombank” PJSC (the legal successor of “SKIB” Bank” Ltd. since 12.11.2018) to connecting to the service. In view of the FAS Commission, actions of “Penenza” JSC and “Brio Finance” Ltd. could restrict competition on the market of tender crediting.

The case against “Penenza” JSC and “Brio Finance” Ltd. was opened upon materials of the unscheduled inspections carried out by FAS following the complaint.

Throughout 2017, “Penenza” JSC and “Brio Finance” Ltd. acted as the administrators of the service that is an important channel of tender financing. The companies unfairly took advantage of their status as the service administrators: for example, they did not apply evenly their requirements to organizations, particularly, “Sovkombank” PJSC for connecting them to the service.

In spite of the exposed violations, the FAS Commission did not issue an order to the companies because on 1 January 2018 the service administrator for “Credit financing of auction security” of “Sberbank-AST” CJSC had changed.

“Penenza” JSC disagreed with the decision on the case on violating the antimonopoly law and attempted to challenge it at Moscow Arbitration Court. On 30 April 2019, Moscow Arbitration Court agreed with FAS conclusions and dismissed the claim of Moscow Arbitration Court.

Reference

Part 4 Article 11 the Federal Law “On Protection of Competition” prohibits other agreements between economic entities if established that such agreements lead or can lead to competition restriction.

Administrative liability for such violations is specified in Clause 4 Article 14.32 of the Code on Administrative Violations and is punished by an administrative fine:

• Upon top-executives: from 15,000 to 30,000 RUB;
• Upon legal entities - from 1/100 to 5/100 of the revenue of the violator from selling goods (works, services) on the market, where the administrative violation was committed, or the expenses of the violator for purchasing goods (works, services) on the market, where the administrative violation was committed, but no less than 10,000 RUB, and if the revenue of the violator from selling goods (works, services) on the market, where the administrative violation was committed, or the expenses of the violator for purchasing goods (works, services) on the market, where the administrative violation was committed, exceeds 75% of the total revenue of the violator from selling all goods (works, services) or the administrative violation is committee on the market of goods (works, services) that are sold at the prices (tariffs) regulated under the law of the Russian Federation - from 2/1000 to 2/100 of the revenue of the violator from selling goods (works, services) on the market, where the administrative violation was committed, but no less than 50,000 RUB.