ADREY TENISHEV: WE NEED A FULL-FLEDGED ANTIMONOPOLY PROCESS

It is about improving and differentiating antimonopoly procedures, shortened form of proceedings and leniency program.

Deputy Head of the Anti-Cartel Department of the FAS Russia, Andrey Tenishev, took part in the Conference “Development of Competition Law as a Factor of Economic Growth”. The speaker focused on the prospects for improving anti-cartel legislation in his speech.

“The terms “antimonopoly investigation and antimonopoly process” are absent in the Law on Protection of Competition, nevertheless, they are more and more actively included in our daily practice, found in publications and scientific articles. We need to scientifically substantiate and introduce such norms into the current antimonopoly legislation, by analogy with criminal and civil proceedings”, - began his speech Andrey Tenishev.

He drew attention to the need to differentiate procedures, taking into account the fact that in anti-cartel cases the FAS Russia, on its own initiative, collects evidence and on behalf of the state accuses cartel participants of illegal activities.

“It is necessary to reduce procedures and expand the scope of preventive control - this has been shown by the experience of the pandemic”, - the speaker said.

In his words, issuing a notification is possible on all the antimonopoly violations, the element of which is material (illegal coordination of economic activity, etc.).

“There are many questions to the procedures. For example, we considered a cartel case and made a decision on violation of the antimonopoly legislation and it takes months and years. Then we initiate an administrative offence case against each company and this is one more year. In fact, these two processes can be combined and conducted in parallel to each other, what will significantly reduce the time for making decisions, paying fines and time when the company is in uncertainty, as well as save our resources”, - he said.

In opinion of Andrey Tenishev, the procedures for concluding an agreement with the company as a part of the leniency program also need to be adjusted.

“Such a rule is included to the “anti-cartel package” which is now considered by the State Duma. The antimonopoly authority can conclude an agreement with the first company recognized in the cartel, in which all the requirements will be clearly prescribed, upon fulfillment of which the company will be released from the liability. Such a document will also guarantee that the rights of the company recognized in the cartel will be respected”, - said Andrey Tenishev.

“Shortened procedures for considering cases are also possible in occasions where companies have recognized a violation of the antimonopoly legislation and eliminated its consequences. Fines for such companies should be lower. But we need to provide procedural guarantees against various kinds of abuse. For example, in order to avoid a situation where a company admits a cartel in order to be exempted from a fine, and then goes to court to challenge the decision of the antimonopoly authority. And here I see a lot of work for legislators and scientists”, - he concluded.