ANDREY TSYGANOV ABOUT EXESSIVE SELECTION CRITERION

Non-statutory criteria can e recognized as contrary to the competition rules

On 6 December 2019, OECD Competition Forum in Paris (France) included the Round Table – “Competition for Market” on enforcement in the course of concluding and executing concession agreements. At this event, Russia was represented by Deputy Head of FAS Andrey Tsyganov and Head of FAS Department for International Economic Cooperation, Lesya Davydova.

Andrey Tsyganov outlined the criteria for selecting participants and winners of competitive procedures for concession agreements specified in the law on concessions.

Deputy Head of FAS emphasized that non-statutory selection criteria are recognized as contrary to the competition rules since they are excessive and unreasonably limit a range of potential participants of competitive procedures.

The speaker gave examples of cases investigated by Courts up to the Supreme Court of the Russian Federation supporting the FAS position.

The Round Table paid special attention to such a criteria of concessioners selection as past experience in exercising concession agreements.

In view of many speakers, this criterion seriously hampers entry of new participants to the market and creates unreasonable competitive advantages to incumbent companies, long-established on the market. At the same time, not all jurisdictions have competitive authorities with the powers enabling to directly influence the procedures for concessioner selection and ensuring equal competitive conditions.