Key changes to the Protection of Competition Law

The Federal Law of 6 December 2011 No. 401-FZ “On Amendment to the Federal Law ‘On Protection of Competition’ and certain legislative acts of the Russian Federation” (the Law) came into effect on 6 January 2012 (apart from certain provisions). The Law updates legal regulation of combating monopolistic activities and restriction of competition by the authorities, economic concentration, etc.
Please note the following provisions of the Law:
• The list has been shortened of agreements between competitors that are prohibited as such, i.e., irrespective of whether or not they entail a restriction on competition. Although the prohibition stands on “horizontal” agreements entailing or potentially entailing:

 setting or maintenance of prices (tariffs), discounts, mark-ups (additional payments) and (or) mark-downs;

 raising, reduction or maintenance of bids;

 division of a commodity market by territory, goods sales or purchase volumes, range of goods sold or contingent of sellers or buyers;

 reduction or termination of goods production;
 refusal to conclude agreements with specific sellers or buyers; – in the event of conclusion of other “horizontal” agreements, the anti-monopoly authority has to prove their adverse impact on competition for them to be declared unlawful.

The prohibitions envisaged by the anti-trust legislation no longer apply to agreements:
 between commercial entities belonging to the same group (if one is under the control of the other or they are both controlled by the same entity);
 on provision or disposal of rights to use intellectual property or means of identification of a legal entity, means of identification of products, works or services.
The criteria for classing actions as concerted actions restricting competition are specified:
 a mandatory feature is established as public announcement of these by one of the commercial entities party to them;
 concerted actions by commercial entities with a combined commodity market share of no more than 20% are no longer prohibited provided that none of them holds an individual commodity market share of over 8%.

• Warnings have been instituted of impermissibility of anti-trust legislation violation
The warning is sent to the official of the commercial entity that makes a public announcement of planned conduct on the market, if such conduct might result in violation of the anti-trust legislation but there are no grounds for initiating and considering a case of anti-trust legislation violation.

• The procedure is regulated in detail for considering complaints about violation of tender procedures and the procedure for concluding agreements on the basis of tenders not associated with placement of orders for supplies of goods, provision of works or rendering of services for state or municipal needs.
Important changes have been introduced into the procedure for considering anti-trust legislation violation cases. Among these, it has been established that:

 in some cases of abuse of dominant position, the anti-monopoly authority is required, before initiating a case on violation of the anti-trust legislation, to issue a warning to cease the actions meeting the criteria for a violation of the anti-trust legislation and to set a deadline for fulfilling this demand;

 Decisions and warnings issued by the anti-monopoly authority may be reviewed on the basis of new and newly discovered circumstances.