Egorov Puginsky Afanasiev & Partners

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6. Basic trends in the development of antitrust laws in 2012-2013

At the beginning of the year 2012 significant amendments to the Law on Protection of Competition and some other laws, the ‘third antimonopoly package’, entered into force.

The ‘third package’ was based on a Competition Development Program, worked out by the Government of the RF, tasks of which were mostly shaped in reliance on the experience of various European countries and the United States of America.
The major changes are the following:

  • differentiation of the liability for the abuse of dominance based on whether the actions of a competitor restrict competition or only damage the rights of a third party;
  • the update of the concept of concerted actions (introduction of a provision stating that actions may only be classified as concerted actions if performed by rivals and publicly announced);
  • the change of the concept of coordination of economic activity (introduction of provisions stating that only a person not operating in the market in which the coordination takes place may act as a coordinator and excluding actions exercised within the frame of a vertical agreement from the scope of coordination);
  • the update of the requirements for agreements and concerted actions restricting competition: the number of absolute prohibitions has been reduced, and the FAS now has to demonstrate the fact of the alleged restriction or possible restriction of competition in all other cases;
  • when determining whether the price of a product is monopolistically high, the FAS has to be guided by the fair stock exchange price;
  • the range of transactions engaged in by foreign companies that require approval of an antitrust agency has been clearly determined (the criterion being the volume of the product imported to Russia).
  • the asset value thresholds that trigger the prior approval mechanism for mergers of for-profit companies and consolidation of one or several for-profit companies with another for-profit company has been materially increased - from RUR 3 to 7 billion, with the amount of proceeds increasing from RUR 6 to 10 billion. This is expected to materially reduce the number of transactions requiring approval.

Prior to the adoption of the amendments the FAS stated that the antitrust prohibitions will become more liberalised and the liability of companies will soften. How effective these innovations are can be evaluated only in course of their implementation by antimonopoly bodies and courts.