Anti-monopoly issues

General legal and regulatory framework

Anti-monopoly issues are primarily governed by Federal Law No. 135-FZ “On the Protection of Competition” dated 26 July 2006 (the “Competition Law”), while liability for the violations of anti-monopoly regulations is mainly established (in addition to the Competition Law) by the Code on Administrative Offences and the Criminal Code.

The Federal Anti-monopoly Service (the “FAS”), a Russian executive authority, controls and enforces compliance with anti-monopoly legislation.

Trends

Compliance systems bill

In 2019 a bill was passed in first reading in the Russian State Duma to encourage companies to develop and implement systems that facilitate compliance with anti-monopoly laws and prevent breaches of these laws. 

The bill’s main provisions can be outlined as follows:

• Setting up an anti-monopoly compliance system will not be mandatory. If a company decides to do so, however, it will have to adhere to special requirements for the content of internal documents produced within the company or company group.
• These internal documents must include requirements, measures and procedures for (i) assessing anti-monopoly risks; (ii) reducing anti-monopoly risks; (iii) monitoring the compliance system; (iv) making the compliance system known to employees; and (v) providing information about the person in charge of the company’s compliance system.
• Companies will be able to send internal documents of this kind in final or draft form to the FAS to confirm their compliance with anti-monopoly laws.
• Companies will have to post information in Russian on their websites, stating whether an anti-monopoly compliance system has been adopted or applies to that company.

Many companies have already adopted similar systems.

Fifth anti-monopoly package

2020 could see the adoption of amendments to the Competition Law, the so-called “fifth anti-monopoly package”. While the associated work is still on-going, changes may cover such issues as digital economy and intellectual property (“IP”). Notably the removal of the IP exemptions currently provided for in the Competition Law and the introduction of more detailed rules have been proposed. 

Another area that may be affected is merger control. Transactions could additionally be subject to merger clearance based on their transaction value. This is because the traditional criteria (outlined in the relevant section below) do not always reflect the real impact of a transaction in the digital world. Also, more detailed rules on the review of merger clearance notifications (e.g. governing the role of external experts) could be introduced and the timeframe of the review extended. For the time being, it is unclear when, and to what extent, these initiatives are going to be enacted.

Cartels

Practice shows that the Competition Law and the enforcement agenda of the FAS are constantly evolving; the FAS puts a particular emphasis on the fight against cartels, notwithstanding the criminal and cross-border dimensions. Tackling bid rigging also remains a top priority for the competition authority.

The FAS has drawn up a set of bills (already submitted to the State Duma) aimed at dealing with cartels. These draft laws may introduce further amendments to the Criminal Code and the Criminal Procedure Code (relating to cartel initiators), the Competition Law (giving the FAS additional rights during cartel investigations) and the Code on Administrative Offences (in terms of liability for impeding FAS investigations).

Cross-border issues

The role of the Eurasian Economic Commission regarding the analysis of cross-border anti-monopoly violations within the Eurasian Economic Union is expected to increase in the near future.