ANDREY TSYGANOV: OUR TASK IS TO IMPROVE COMPETITION RULES AND CORRECTLY CONFIGURE THEIR APPLICATION

Andrey Tsyganov, Deputy Head of the FAS Russia, moderated the conference "Best Antimonopoly practices in 2020". The event was held in an online format

The representatives of Russian companies and international law firms participated in the forum. They discussed the most significant events in the field of Antimonopoly regulation in different countries as well as landmark cases that affected the development of modern Antimonopoly practices.

The conference participants could not ignore the topic of the reaction of regulators, including competition agencies, to the new coronavirus infection.

“Many foreign experts, including OECD specialists, have divided the pandemic period into several stages. The first one is the failure of the market, when it turned out that everyone physically does not have enough products that are so necessary in this difficult time to fight infection. The second is when, with the help of large-scale state support, both in Russia and in other countries, this situation was largely corrected. And we hope that in the near future the third stage will begin - the stage of returning the economy and people's lives to normal,” said Andrey Tsyganov.

Commenting on the statement that COVID-19 had a significant impact on the Antimonopoly rules of the European Union, the Deputy Head of the FAS Russia noted the following:

“The study of the extensive world experience of actions of competition authorities in the fight against coronavirus infection has shown that we are going in the same direction, but in slightly different ways. The European Commission is primarily concerned with two topics: expanding the permissible limits of cooperation between market participants and setting limits on state aid. As for Russia and the actions of the FAS, we focused primarily on dealing with unfair attempts by unscrupulous firms to profit from people's suffering by inflating prices for those goods, such as medicines and food, which are very important, but are in short supply,” the speaker added.

In conditions associated with a pandemic crisis in many countries, the tendency to state protectionism, the introduction of new restrictions for foreign companies, including those not directly related COVID-19, for example, a bill subsidized companies in the EU and the Law on the protection of telecom industry in the UK. At the same time, the main arguments are not only measures to ensure fair competition, but also the interests of national security.

Particularly, during the forum the participants discussed the draft of new legislation, which was presented by the European Commission in June this year. The document is aimed at combating business subsidies from foreign countries that distort competition in the EU. The draft law provides for the creation of a mechanism for preliminary and subsequent control of transactions by foreign companies that operate in the EU countries and at the same time are supported by their state. Answering the question whether Russian companies need to prepare for the impact of the measures proposed by the European Commission on their business projects after the adoption of the new legislation in order to maintain their position in the EU market, the Deputy Head of the FAS Russia said the following:

“Now some measures applied by a number of States lead to the rupture and complicate of existing economic relations of companies. To the question of whether Russian companies should prepare for the adoption of new European legislation, they definitely should. We have experience as well as experts who know how to work with similar cases, for example, in the framework of anti-dumping investigations and disputes in the WTO. And, most likely, they will be in demand even more. States should also prepare for, but not from the point of view of turning this into a war of “sanctions – anti-sanctions” and closing their own market in response. This way is ineffective. We need the most flexible approach here,” the Deputy Head believes.

The conference focused on digital markets that require close attention from competition authorities. The participants' reports covered such issues as the government's proposed new measures to regulate digital markets (the Telecom industry diversification strategy and the regulator's report “Online platforms and digital advertising” in the UK, the concept of EU legislation on digital services and new competition policy tools, the report on the results of the parliamentary investigation on digital markets in the US), new investigations by competition authorities in different countries in relation to digital companies, modern approaches to the analysis of the state of competition in digital markets and the economic theories used in this case, features and limits of permissibility of contextual advertising on the Internet.

Participating in the discussion on the specifics of market analysis in the new economic realities, Andrey Tsyganov emphasized:

“The analysis is necessary, because without understanding the object of research, it is impossible to implement law enforcement. The Order of the FAS Russia of 28.04.2010 No. 220 “On approval of the Procedure for analyzing the state of competition in the commodity market” uses a very correct wording – the analysis should be carried out to the extent and by the methods necessary for making a reliable decision,” he said. At the same time, Andrey Tsyganov drew special attention to the importance of applying the right approaches to analyzing the ecosystems that are forming around the largest players in digital markets, emphasizing the prospects of this area of work of competition agencies.

One of the issues during the discussion was the readiness of the Russian regulator to improve its approaches to considering transactions of economic concentration and the possibility of implementing the experience of foreign agencies in the Russian reality.

“The procedure for making decisions on cases of violation of Antimonopoly legislation is spelled out in the Law on protection of competition to the smallest detail. The Chapter that deals with transactions of economic concentration is mainly administrative and technical in nature and regulates document flow. It makes sense to describe in more detail in the Law the procedure for reviewing applications from a meaningful point of view, because this function is no less important for market participants. As for foreign experience, procedures similar to those set out in the normative documents of the European law are actively used in Russia. For example, for transactions that significantly affect the country's economy, we discuss with participants all the details and obligations that will allow us to complete this transaction without compromising the company and at the same time without compromising competition. Our further task is to improve the competition rules and adjust their competent application,” the representative of the Russian Antimonopoly Authority concluded.