FAS IS DRAFTING EXPLANATIONS ON THE KEY ASPECTS OF ANTIMONOPOLY ENFORCEMENT

On 20 November 2019 the extended session of FAS Research-and-Methodology Council of Educational Organizations and Competition and Antimonopoly Regulation Departments discussed pressing issues of enforcement practice during the V International Research-to-Practice Conference – “Antimonopoly Policy: Science, Practice, Education” in “Skolkovo” Innovation Centre.

Representatives of the academic community, judges of Arbitration Courts, administrators of the Supreme Court and Heads of OFAS took part in the event.

Deputy Head of FAS Sergey Puzyrevskiy stated that “the task facing today the Council is associated with preparing explanations on the key aspects of antimonopoly enforcement in line with the National Competition Development Plan. There is not unified understanding with regard to quite a few practical issues. The Council will be able to formulate the key approaches to antimonopoly enforcement”.

The Council meeting had four main thematic blocks: abusing dominance, subsidies and preferences – impact on competition, cartels and other competition- restricting agreements, and procedural and proceedings issues.

The Council discussed the main questions related to ascertaining abuse of dominance, defining the concept of consumers at large in the context of establishing judicial approaches, and analyzing the state of competition on the market and collective dominance.

FAS Research-and-Methodology Councilalso discussed the practice of qualifying actions of all levels of the authorities by antimonopoly bodies for granting subsidies to particular legal entities and giving preferences to economic entities, and possible violations in the course of such actions.

Finally, the participants discussed various procedures and proceedings, including delineating preventative and preclusive-and-remedial means, as well as procedural aspects of warnings.

The Council also touched some issues of in-house appeal with regard to decisions and orders passed by OFAS.

“There is no formalization with regard to this procedural instrument in the position of the Supreme Court, but business needs a clear understanding about the possibilities given by this tool”, commented Head of FAS Legal Department Artem Molchanov.

The Council discussed enforcement and judicial practice against cartels and other anticompetitive agreements. The rapporteur was Head of FAS Anti-Cartel Department Andrey Tenishev.

He pointed out that the discussion participants reached a consensus on some most complex questions of anti-cartel enforcement.

“We managed to agree that cartels are prohibited per se and do not require to prove competition restrictions, and that there is no need to introduce some “proof standards” in cartel cases and evidence should be assessed in terms of their relevance, admissibility and sufficiency, that cartels can be a continuous offence, and “cartel immunities” formalized by the law, cannot have broad interpretation”, stated Andrey Tenishev.

He added that the “Council decided to continue discussions on a number of aspects, for example, what is the moment of ending a continuous offence in cartel cases”.