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An expert’s forecast: an increase of the amount of accusations of status companies of entering into cartels is expected in 2013


“Juridical World” magazine, official edition of the Lawyers’ Association of Russia. No. 12, 2012

- Arthur Alexandrovich, it has been almost a year since the adoption of large-scale amendments to the legislation – the so-called Third Antitrust Package. May we generalize on the causes for their adoption?

- The Federal Antitrust Service and the lawmakers have taken the objective, which can be described as correction and liberalization of antitrust legislation.

Igor Artemiev’s institution has analyzed the practice and concluded that certain wordings of the elements of offence were unfortunate. This led to that many evaluative categories were incorrectly construed. Therefore, also due to the pressure from the juridical community, wordings of concrete elements of offence of antitrust legislation were corrected. Consequently, the motives for bringing to liability the persons, who have not actually violated any laws, were eliminated, and the possibility to manipulate the antitrust law provisions shrunk.

- How do you evaluate the results of application of the amendments?

- The antimonopoly legislation became more structured regarding the matters of control over the competition space and market concentration. More precise wordings appeared which arose as a result of the analysis of certain precedents and definitions.
All novelties are functioning since the changes were applied to the most significant aspects of law application, and they have certainly influenced the practice in some way. Another case is that some provisions were consequences of certain compromises between the FAS, the Government of Russia and the State Duma of the Federal Assembly of Russia. Maybe this is the cause of why some provisions were not completely developed.
But in general the Third Antitrust Package deserves a positive evaluation.

- What pitfalls were not taken into account during the development of the Third Antitrust Package?

- It should be understood that creation of the Russian antitrust legislation began from scratch in mid-2000’s. The Law “On protection of competition” was adopted only in 2006. When a new branch arises, it is impossible to know in advance the way how the law application subjects react and adapt to the effect of those laws. That is why the initial application of the new edition of the law always makes additional problems evident. For example, the institution of warnings. This mechanism is aimed at that business, on a signal from the antitrust authority, would correct its conduct and avoid further trouble.
But the FAS failed to take into account that the very warning in certain situations was of the nature of a compulsory element of further bringing to liability. And if the warning was unwarranted, it may be applied against. But if there is an independent way to appeal against such warnings, territorial departments of the FAS will receive one more level of court disputes instead of a simplified regulation mechanism. This complicates the FAS activity and goes against the very idea of the institution.
If the warning may be contested, its existence in the current version is unviable. If it is not to be contested, the law should mention this…

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