2.1 Overview

DPP is to ensure observance of the antimonopoly regulations in Belarus. To achieve this DPP periodically conducts monitoring of competition at various product markets, reveals dominant entities and competition-restrictive practices and implements control over transactions that may result in monopolistic concentration.

In the recent years DPP succeeded in limiting market powers of the dominant entities through various instruments (mainly control over transactions in respect of such entities and their price-formation policies), although merger control regime remains underdeveloped.

Grounds for liability for infringement of antimonopoly regulations in Belarus are rather standard: a company might be held liable in case it is found to abuse its dominant market position, engage in prohibited competition-restrictive practices (agreements and concerted actions), use unfair competition methods or do large transactions without approval of the antimonopoly authority (when it is required).

There are little specifics in approach of Belarusian competition regulations to various sectors and various product markets. For example, there are specific rules for calculation of the market share and, accordingly, dominancy determination in financial services sector. DPP also applies antimonopoly rules to acquisition of the financial sector entities with certain exemptions (only to those entities having a dominant position at the market).

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2.2 Dominance

Dominant market position under Belarusian laws extends to exclusive market position of a given economic entity or several entities of such products that do not have alternatives, or on a market of products that do have alternative products but where such market position of an entity (entities) provides it (them) with an opportunity to exercise decisive control over general conditions of the market or to restrict market access for other entities.

Basic criteria to qualify for a dominant market position are:

1. exceeding of certain market share (market shares for different sectors are provided by the Ministry of Economy's regulations) except for the cases of a state or other lawful monopoly;
2. DPP's determination that based on the stable market share of a given entity comparing to competitors of such entity and with regard to the easiness of market access and/or other parameters of the product market, market position of a given entity is dominant.

An entity might be found holding a dominant market position not only on the national (republican) market but also on a local (regional) market within the country. There is also a concept of "joint domination" by a group of entities.

Forms of abuse of dominant market position include inter alia:

• creating restrictions to market access by other entities;
• monopolistic price-fixing or price-setting;
• entering into pricing agreements limiting counterparty's ability to freely set prices;
• tied-in arrangements;
• entering into discriminating agreements and agreements limiting counterparty's ability to freely choose its contractors.

However, there is a general rule that the abuse of a dominant market position might be justified by DPP as a matter of exception if a company in question succeeds in proving that operation of such practices is needed to implement requirements of statutory acts enacted in compliance with the Constitution of the Republic of Belarus, and that limitation of competition is being effected only inasmuch as it is unavoidable or required to precisely and duly implement relevant statutory acts.

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2.3 Monopolistic agreements and concerted actions

Article 6 of the Antimonopoly Law deals with prohibited, competition-restrictive agreements and arrangements. It should be noted that not only formal written agreements but also informal arrangements and concerted actions are considered.

Non-exhaustive list of prohibited competition-restrictive practices includes:

• market sharing by territory, types and amounts of transactions, by price or by customers;
• restricting of market access by other entities;
• unjustified increases, decreases or maintenance of prices;
• unjustified limitation of production of goods and control of goods distribution in the markets;
• transactions with securities, currencies and financial facilities with the view to create, strengthen or preserve dominant market position;
• refusal to contract with certain counterparties.

Antimonopoly Law provides for an exemption whereby arrangements similar to the prohibited ones might yet be justified: it is required to demonstrate that general positive economic effect of an arrangement on a given product market or Belarusian economy would outweigh the negative consequences of competition restriction as well as that their implementation is expressly required by the statutory acts enacted in compliance with the Constitution of the Republic of Belarus.

Where commercial entities intend to enter into a transaction triggering competition-restrictive concerns, such entities may benefit from a formal procedure of DPP's review of the terms and conditions of the transaction and of DPP's approval of the transaction. The procedure is voluntary, not overly formalized and relatively quick: DPP is to issue or decline its approval within one month from the filing date.

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2.4. Unfair competition

Unfair competitive practices are prohibited and challengeable in front of DPP by any parties suffering from unfair competition.

There are two main types of unfair competion:

- actions that may potentially result in confusion regarding the identity of commercial entities (unlawful use of trade names, trademarks, origin indications etc., unlawful copying of goods' package or appearance; trade in misleadingly identified goods, etc.)

- unlawful statements discrediting competitors, their products or commercial activities: direct and indirect (e.g. through any media) dissemination of wrongful discrediting information about commercial entities, their financial position, commercial activities, products and manufacturing capacities; dissemination of information damaging the commercial reputation of an entity, its personnel or shareholders, that may undermine commercial reputation of such entity. go to top

2.5. Antitrust investigation

Investigations are mostly initiated by third-party complaints, however, DPP is entitled to start investigations at its own initiative if it finds competition-restrictive behaviour (e.g., as a result of routine monitoring of the markets).

The DPP investigation is to be concluded within one month, although the term is extendable to two months in case there is not enough evidence to reach a conclusion.

Procedural rights and obligations of the parties involved in investigation are not sufficiently regulated. Regulations only expressly provide that such parties (as well as DPP itself) may invite experts or specialists in a given sector if the investigation calls for some specific knowledge or skills.

Although regulations are silent on confidentiality, normally, confidentiality is preserved over the course of the proceedings. For example, technical experts and parties' representatives are required to maintain confidentiality of commercial secrets disclosed in the course of the proceedings.

DPP is entitled to seek explanations and request relevant documentation from the parties. As a result, DPP's enquiries are legally binding.

Based on the results of the investigation, DPP may issue a binding order requiring stopping infringements and imposing administrative fines on the infringing entity.

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2.6. Implications for infringers

In the event that DPP issues a binding order an infringer is obliged to report about its implementation and to send DPP a "compliance notice" within the term specified in the order.

There are several administrative offences stipulated by Belarusian law to categorize infringement of competition regulations:

• failure to comply with binding orders of DPP;
• undue or late implementation of binding orders of DPP;
• submission of misleading information to DPP;
• engaging in prohibited competition-restrictive agreements and concerted actions.

Administrative penalty is the fine in the amount of up to 50 basic units (approximately USD$580). Besides imposition of administrative fines, another implication is that competition-restrictive arrangement may be challenged and invalidated in court.

Repeated infringements of competition regulations may result in personal criminal liability of an infringing entity's officers (major fine and/or up to 5-year imprisonment).

It should be noted that Belarusian antimonopoly regulations do not provide for any leniency programs – so far regulations do not offer exemptions from liability for companies that report about existing competition-restrictive arrangements.

As regards to third-party enforcement, those suffering from alleged competition-restrictive practices can file petitions to DPP seeking to stop such practices, but cannot claim recovery of damages.

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