ESSENCE OF FAS WARNINGS AND ORDERS

Head of FAS Legal Department Artem Molchanov about the procedure of issuing warnings and orders, possibility to change them and the legislative initiatives on improving them in conditions of economic digitalization

A Round Table of the Corporate Counsels Association (CCA) discussed FAS powers for issuing warnings and orders / injunctions. The participants also considered expediency of market analysis before issuing warnings upon elements of violating Articles 10 and 14 of the Federal Law “On Protection of Competition”.

Answering questions from CCA members, Head of FAS Legal Department Artem Molchanov pointed out that signs of breaching the antimonopoly law suffice to issue a warning.

He said: “The question is where just signs end and where a violation starts? Perhaps, the signs in question already constitute an accomplished fact of a violation? The line is nearly erased. It means, if an action or omission on a market breach bans of the antimonopoly law, it suffice to issue a warning”.

CCA also discussed FAS position on changing the provisions of orders / injunctions or warnings after issuing, if a person that received it would like to settle the situation in a different way.

Artem Molchanov explained: “It appears that a slight amendment is enough to enable the antimonopoly body to change its decision and order. In practice, however, it can be interpreted very broadly and lead to different application of the norms of the antimonopoly law”.

The essence of the institution of warnings is to allow economic entities eliminate signs of violations, terminate actions and avoid public legal liability by executing the warning.

The Round Table also discussed liability for anticompetitive agreements, issuing orders / injunctions on tariff-setting cases and upon petition consideration.

The “fifth antimonopoly package” drafted by FAS to fulfill the National Competition Development Plan gives new powers to the antimonopoly authority for approving mergers.

For instance, to protect the interests of market participants, the draft law specifies additional consequences of failure to execute FAS orders: the antimonopoly body can file a lawsuit to get permission for use in Russia, in the interests of developing competition, the results of intellectual activity owned by a person to whom an order / injunction was issued, or request Court to ban (limit) circulation of such good of that person.

As informed by Head of FAS Legal Department, the Antimonopoly Service submitted a draft law to the Government of the Russian Federation clarifying the norms of the Civil Code on the right of the Government to make decisions on use of the results of intellectual activity not only in the interests of defence and security but also life and health of the population.