APPEAL COURT CONFIRMED FAS DECISION REGARDING “PENENZA” JSC
On 22 August 2019, the 9th Arbitration Appeal Court upheld the decision of Court of First Instance accepting the measures undertaken by the antimonopoly body actions
In December 2018, FAS Commission, comprising also representatives of the Bank of Russia, arrived to a unanimous opinion that “Penenza” JSC and “Brio Finance” Ltd. violated the Law “On Protection of Competition” [1].
FAS Commission established, in particular, that throughout 2017 “Penenza” JSC and “Brio Finance” Ltd. had acted as service administrators for “Loan financing of auction applications” of “Sberbank-AST” CJSC, which is an important sales channel for tender loan services. Possessing the service administrator rights, the companies entered into an oral agreement, the goal of which was to prevent entry of “Sovkombank” PJSC [2] to connecting to the server.
In view of the FAS, actions of “Penenza” JSC and “Brio Finance” Ltd., particularly, in the part of unequal use of the requirements, drafted by them, for connecting companies to their service, could have restricted competition on the market of tender loans.
FAS did not issue orders to the companies in spite of the exposed violation since on 1 January 2018 that service administrator for “Loan financing of auction applications” of “Sberbank-AST” CJSC changed.
“Penenza” JSC disagreed with FAS decision and filed a lawsuit. On 30 April 2019 Moscow Arbitration Court dismissed the claim.
“Penenza” JSC appealed the ruling but on 22 August 2019, the 9th Arbitration Appeal Court also did not allow the appeal.
Reference:
Part 4 Article 11 of 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:
Fines upon top-executives - from 15000 to 30000 RUB;
Upon legal entities - from 1/100 to 5/100 of the proceeds of the violator from selling goods (works, services) on the market where the administrative violation was committed, or the costs of the violator for acquiring goods (works, services), on the market where the administrative violation was committed, but no less than 100000 RUB, and if the proceeds of the violator from selling goods (works, services) on the market where the administrative violation was committed, or the costs of the violator for acquiring goods (works, services), on the market where the administrative violation was committed, is higher than 75% of the total proceeds of the violator from selling all goods (works, services) or the administrative violation was committed on the market of goods (works, services), that are sold under prices (tariffs) regulated in accord with the law of the Russian Federation - from 2/1000 to 2/100 of the violator from selling goods (works, services) on the market where the administrative violation was committed, but no less than 50000 RUB.
[1] Part 4 Article 11
[2] legal successor – “SKIB” Bank” Ltd. from 12.11.2018