RUSSIAN UPDATE – Amendments to Antitrust Laws Designed to Liberalize Prohibitions and Reduce Liability of Filers
- On November 22, 2011 the State Duma of theRussian Federationpassed a new package of amendments to the antitrust laws in the third reading. The proposed “Third Antitrust Package”, which still has to be approved by the Council of Federation and then signed by the President, changes antitrust regulation significantly.
- In expectation of the innovations, the FAS assures that the antitrust prohibitions will become more liberalized and the liability of companies will become softer.
- Implications of the Third Antitrust Package are two-fold: a favorable trend can be seen in the issues related to the liability of companies and economic concentration. At the same time, in respect of legal regulation of agreements, these innovations may in practice be only of cosmetic nature.
Agreements and Concerted Actions
- The notion “Agreements” and “Concerted Actions” has been split up. One more innovation concerns the list of prohibitions per se applicable to the agreements between companies. The list has been shortened. How well will this change perform in practice depends on how demanding the courts will be to the quality of evidence presented by the antitrust authority.
- According to the new version of the law, an intragroup agreement will not be subject to prohibition if one of the group persons controls another person within this group. Meanwhile, an opinion previously existed in the legal community that group members are in principle not proper entities under Article 11 of the Law, notwithstanding the ground on which they form this group. Therefore, the approach to the agreements/concerted actions in a group legalized by the law-maker, in fact, extends the area of responsibility.
- The “Concerted Actions” allocated to a separate article (Article 11.1) by the proposed amendments mean only those actions that are in advance known to each party through a public announcement of such actions (new version of Article 8.1 of the Law). At the same time it is not clear what is to be treated as a “public announcement”, who must make this announcement, and what powers the announcer needs to have. It appears that the FAS may face certain difficulties in proving a verbal agreement and subsequently protecting its position in court.
- The bill unambiguously limits the applicability of prohibitions to agreements that restrain competition and concerted actions only of competing companies, i.e. those which sell goods on the same product market. Previously, “vertical” concerted actions (i.e. actions of non-competing companies) were rather senseless. However, this innovation is of course an example of liberalization.
- Initiatives of the Third Antitrust Package also limit the applicability of prohibitions to the concerted actions of companies with the total share in a product market of more than 20% and the share of each of them of not more than 8%. However, there is still the risk that actions of these companies may be qualified as ‘coordination’.
- The liability for the concerted actions that violate prohibitions per se is technically eliminated if there is a threat of the competition restraint: the actions should effectively entail the implications listed in the respective article of the Law. In fact, the proposed loosening is leveled down, because the antitrust authority may qualify any per se prohibition according to the Article 11.3 by additionally referring to the restriction of competition.
- An important innovation is that prohibitions entering agreements that restrain competition will no longer apply to the intellectual property agreements (Article 11.9 of the Law in the new version).
The bill limits the opportunity to qualify as coordination only those concerted actions of companies agreed by a third party, which does not operate on the same product market, in which the concerted actions take place, i.e. only non-competing companies can be coordinated.
In accordance with the Third Antitrust Package those actions which are carried out under “vertical” agreements do not state coordination (Article 4.14 of the Law in the new version). Thus the bill has settled one of the most controversial issues in law enforcement practice.
Concept of Warnings
The antitrust authority will have the right to send “warnings” to officials of companies who publicly announce that they plan to act “anti-competitively” in a product market, to ensure the compliance with the antitrust laws.
Financial figures will increase, which, if achieved, require approval when creating or reorganizing a commercial company: the total asset value has increased from three to seven billion Russian roubles, and the total revenue went up from six to ten billion Russian roubles.
One of the innovations that the Third Antitrust Law proposes is to introduce how to deal with complaints for tender and contracting procedure and how to assess administrative fines based on the tender value. It was proposed to fix sanctions for agreements and concerted actions in a tender.
The Third Antitrust Package also covers amendments to the regulations related to the liability for breaching the Competition Protection Law. Primarily, there will be no criminal liability for the concerted actions.
Significant amendments were also made to the administrative liability for offences set out in the Russian Code of Administrative Offences:
- fixed fines for the abuse of dominance, which did not entail prevention, limitation or elimination of competition. At the same time, actions, which triggered these implications, will still be penalized by turnover fines;
- new element of the administrative offence will be manipulation of prices in the wholesale and/or retail electricity (capacity) markets;
- liability under Article 19.8 of the Russian Code of Administrative Offences not only for failure to disclose information to the antitrust authority, but also for the delay in doing so;
- “mitigating” and “aggravating” circumstances that are taken into account when trying administrative cases in the area of competition. Specifically, the bill treats the following circumstances as “mitigating”: compliance with the instruction before proceedings come to an end, written acknowledgement of a breach and cessation of an offense, and cooperation with the antitrust authority during the investigation. Each of the above circumstances reduces the administrative fine by eighth of the difference between maximum and minimum applicable administrative fine. In turn, the “aggravating” circumstances include: continuity of an offense, significant damage, organization of agreement or concerted actions restricting competition by the offender, and etc.
Therefore, implications of the Third Antitrust Package are two-fold: a favorable trend can be seen in the issues related to the liability of companies and economic concentration. At the same time, in respect of legal regulation of agreements these innovations may in practice be only of cosmetic nature: only through practical implementation the quality and applicability of the amendments will become clear.