Egorov Puginsky Afanasiev & Partners

"The best choice for solving multilevel issues with a marked Russian character"

Chambers Global

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Moldova Moldova Moldova Moldova Moldova

40/4 Bol. Ordynka

Moscow, 119017

Tel: +7 (495) 935-8010

Fax: +7 (495) 935-8011

22-24 Nevsky pr.,Suite 132

St.Petersburg, 191186

Tel: +7 (812) 322-9681

Fax: +7 (812) 322-9682

3 Gough Square

London EC4A 3DE

Tel: +44 (0) 20 7822-7060

Fax: +44 (0) 22 7353-5905


5. Current case law trends

The 2010 case involving TNK-BP Holding oil company was very significant. The company was accused of establishing and maintaining monopolistically high prices for gasoline and jet fuel in Russia, setting economically unjustifiable varying wholesale prices for jet fuel and creating discriminatory conditions in the wholesale gasoline and jet fuel markets of the Russian Federation.

The decision of the antitrust agency was successfully contested by TNK-BP Holding in the trial court, the appellate court and the court of cassation.

During the supervisory review of the decision, the Presidium of the Supreme Arbitrazh Court of the Russian Federation found that:

  • In this case the antitrust agency correctly applied the provisions concerning the collective dominance of business entities;
  • The prohibition on creating discriminatory conditions and establishing different prices not motivated by economic, technological or other necessity applies to both intragroup and extragroup transactions;
  • Establishing different prices is also unacceptable where domestic consumer prices, on the one hand, and external prices, on the other hand, are compared.

After the Law on Investing in Strategic Entities came into effect in 2008, some cases critical to the subsequent application of the Law were reviewed. For example, in the OJSC TGK-2 case’ 2010, the court held that the mere fact that a foreign investor was included in the group to which the buyer acquiring control of a Strategic Entity belonged (whether or not such foreign investor controls the buyer or its group) is sufficient for the transaction to be classified as one requiring prior consent.

In the case of OJSC Novatek 2010, the court delivered an opinion on indirect control over a Strategic Entity. The court held that the concept of indirect control consists of the foreign investor being able, by means of third parties, to actually manage the votes attributed to the voting shares in the authorized capital of a Strategic Entity - in other words, a foreign investor has the right to direct the intent of the third party when the latter votes at a general shareholders meeting.