COMPETITION CODE IS A LONG-STANDING NEED

It should formalize the antimonopoly proceedings

Speaking at the session of “Antimonopoly process and the right to defence” at a  “Pravo.ru” conference on 27 June 2019, Head of FAS Anti-Cartel Department Andrey Tenishev said thatalthough the Law on Competition does not have a special procedural Chapter, the “antimonopoly proceedings” term can already be introduced.

He pointed out that “Procedural norms are scattered across different articles of the Law, but when we will create the Competition Code, it will have a clear and, logical procedural part. There are already some elements, for instance, we introduced   a determination of case circumstances, which is an analogue of an indictment in criminal proceedings or a protocol in administrative proceedings”

According to Andrey Tenishev, FAS pays a lot of attention to the rights of the proceedings participants: “The case consideration procedure is spelled out rather clearly”.

He emphasized that the antimonopoly proceedings need differentiation: “When we consider abusing dominance or most cases on unfair competition, we perform a quasi-judicial function, considering disputes between a large entity against a small one. In the cases on anticompetitive agreements we prosecute companies on behalf of the state than infringe the rights of public at large and trench on the Constitutional values. Here we have completely different functions and powers: we have then right to carry out inspections in corporate offices and prosecute the violators of behalf of the state.  The procedures also should be different. We should always keep this in mind improving the procedures”.

The current procedure of holding liable by the antimonopoly body is as follows: FAS carried out inspections, requests information, and this is sufficient to open a case, then the case is investigated, a determination the case circumstances is issued,  and, in view of the respondent’s arguments, a “guilty” nor “non-guilty” decision is made. Then FAS must open an administrative case, establish the level of involvement in the violation, mitigating / aggravating circumstances and impose a fine.

Head of FAS Anti-Cartel Department made a suggestion to be discussed: “In essence, we do the same twice. The degree of violation, mitigating and aggravating circumstances can be ascertained during the case investigation and impose a fine simultaneously with the decision-making. This way we will save public resources and it also shortens the timeframe of prosecuting violators”.

Regarding digitalization of proceedings, Andrey Tenishev said that exposing and proving some standard violations can be given to algorithm programs, with a possibility to appeal the decision and request the full case-consideration procedure.

He pointed out that “it is also expedient to have fast-track case investigation procedures for those who admitted violations”.

Deputy Head of FAS Legal Department Konstantin Alyoshin agreed with the need to compile the Competition Code and emphasized that “the system of control and-supervision bodies of the Russian Federation does not have a body where сthe procedure of holding the violator liable is so complicated”.

He gave an example of a statement on abusing dominance (Article 10 of the Federal Law “On Protection of Competition”): “The FAS Russia sees if there are signs, if yes – inspection, market analysis, the conclusion is reached that there is dominance and there are signs of a violation – a warning is issued. If the potential violator did not react to the warning, we open a case involving all stakeholders, with a possibility to present their position, market analyses, economic conduct of economic entities, an opinion on the case circumstances is made collegially – it is a blueprint of the future decision – the parties can give their positions about the document, and only if this does not suffice, a decision on violation is made. And then the administrative proceedings start.”

“At the same time, each of the stages – warning, decision – can be appealed at Court”, added Deputy Head of FAS Legal Department.

Konstantin Alyoshin informed about the in-house appeal procedure – verifying compliance of decisions to the established practice.

He pointed out: “To bring the practice of FAS regional Offices to the common denominator, the Antimonopoly Service works in two directions: first – issuing explanations on the most complex norms of the antimonopoly law - and possibility to appeal”.

According to Deputy Head of FAS Legal Department, already 80% more complaints are considered under the in-house appeal procedure, than in 2018. In his opinion, the populatiry of the institution is growing due to the predictability factor: FAS is going to make decisions spelt out in the Explanations.

Konstantin Alyoshin stressed that it is worth to refine the appeal procedure because “so far we are in the legal regime under Article 23 the Law “On Protection of Competition”, and this norm is not enough”; the procedure was introduced in 2016 and the main general approaches to the procedure that must be included in the Competition Code have been just formed.