2.1 Grounds for liability

The antitrust laws prohibit the following actions:

• abuse of a dominant position;
• entering into anticompetitive agreements and taking concerted actions;
• facilitating collusion;
• engaging in unfair competition;
• government and municipal authorities adopting regulations restricting competition;
• entering into anticompetitive agreements and taking concerted actions with state and municipal authorities;
• violating antitrust bidding requirements.

In addition, there are certain 'derivative' antitrust offences (specifically, these include violation of a prescription issued by an antitrust authority, failure to provide data requested by the FAS of Russia, etc.). go to top

2.2. Dominance

Dominance is the position held by a competitor in a certain commodity market that allows it to have a decisive impact on the general circulation of a product in the respective market and/or eliminate from such market other competitors and/or hamper other competitors' access to such commodity market.

The market share held by a competitor is a key criterion for establishing dominance.

Single firm dominance. A competitor is presumed to be dominant if its market share exceeds 50%. A competitor may provide evidence of the fact that its position is not dominant. If the market share of a competitor is within the 35-50% range, it may be found to be dominant by an antitrust authority. In exceptional cases, subject to compliance with additional conditions, a competitor with a market share below 35% may be found to be dominant.

Collective dominance. If demand for a commodity is not price elastic, the product may not be substituted and the shares of competitors in a commodity market are stable, one or several competitors may be found to be dominant if the aggregate market share held by up to three competitors with the largest market shares is in excess of 50% or if the aggregate share of not more than five competitors with the largest market shares is in excess of 70% (this provision does not apply if the market share of at least one of the competitors is less than 8%).

The law provides for a non-exhaustive list of actions considered to be an abuse of a dominant position (including establishing and maintaining monopolistically high or low prices, product recalls, etc.). Such actions result or may result in the prevention, restriction or elimination of competition and/or cause damage to other parties.

There are special rules for establishing the dominance of financial institutions.

Abuse of dominance (except for certain violations) may be found to be acceptable if it is in line with the provisions of article 13 of the Law on the Protection of Competition, subject to the following conditions:

• Such actions do not threaten to eliminate of competition;
• Inadequate restrictions are not imposed on the market players;
• Such actions result or may result in the improvement of operations/products sales or may stimulate progress, as well as promote adequate advantage (benefits) for buyers.

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2.3. Monopolistic agreements and concerted actions

An agreement is a written arrangement contained in a document or several documents and can also be a verbal arrangement. The antitrust law differentiates between 'vertical' and 'horizontal' agreements. 'Horizontal' agreements are subject to a number of absolute prohibitions. For 'vertical' agreements, there are other grounds making it unacceptable to enter into such agreements. In addition, it is prohibited to enter into any (either horizontal or vertical) agreements that may restrict competition. However, subject to compliance with certain requirements (improvement of operations, benefits and advantages for buyers, etc.), it is possible to argue that such agreements are acceptable. 'Vertical' agreements are also found to be acceptable if they are franchising agreements or if the market share held by each party to such agreements does not exceed 20%.

The rules applicable to the process of entering into such agreements - also apply to concerted actions.

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2.4. Unfair competition

Unfair competition is a separate antitrust violation that consists of competitors' wrongful actions intended to obtain advantages against their rivals in business operations, as well as to eliminate rivals in a particular commodity market (e.g., circulating false, inaccurate or distorted data, or by introducing products based on the unlawful use of intellectual property, etc.).

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2.5. Antitrust investigation

Antitrust cases are considered by a FAS of Russia commission specifically set up by the FASof Russia within nine months of the date of the order scheduling a hearing in the case. Based on the case hearing results, a decision is delivered, and, in some cases, an order is issued prescribing a number of conditions to be met. The procedure for hearing a case is regulated by the Law on the Protection of Competition and the administrative regulations of the FAS of Russia.

As of August 2009, antitrust cases are subject to a limitation period of three years from the date of the offence or the date of its detection or termination (for continued offences). A case may not be initiated after the expiration of this period, and an initiated case is subject to termination.

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2.6. Implications for infringers

Based on the results of a hearing in an antitrust case, an order may be issued to the respondent describing the prescribed conduct, as well as an order to surrender the proceeds derived from engaging in monopolistic activities to the federal government. Such orders shall take into account each respondent's proportionate wrongdoing and indicate the amount of revenues to be surrendered to the government. Recovery of monopolistic proceeds is a compensatory sanction rather than a government-applied liability measure and, thus, it may be combined with an administrative fine.

A decision in an antitrust case also gives rise to administrative proceedings. The Administrative Offences Code provides for liability in the case of abuse of dominance, entering into and being party to anticompetition agreements and concerted actions, coordination of economic activities and unfair competition. The main sanction imposed on companies is a fine levied on their turnover (from 1% to 15% of the proceeds from sales in the commodity market where the offense was committed for the year when the offence was committed or the year preceding the discovery of the offence). Fines of up to RUR 50,000 and a disqualification are provided for the officers of such companies.

The RF Criminal Code establishes criminal responsibility for individuals who enter into anticompetition agreements and concerted actions, as well as repeated abuse of dominance in the form of establishing and/or maintaining a monopolistically high or low price, unmotivated refusal or failure to enter into a contract and restricting access to the market, if such actions caused substantial damage to individuals, entities or the government, or substantial profit was derived. The statutory sanctions are fines and imprisonment.

An antimonopoly offence may result in civil liability, specifically, in connection with a claim for recovery of losses. Seeking a remedy from an antitrust agency does not prevent a person from bringing a lawsuit for the recovery of losses.

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