At a recent meeting, the Presidium of the Federal Antimonopoly
Service of Russia ("FAS") adopted Clarification No. 3 of
17 February 2016 (the "Clarification"), concerning
methods for proving anticompetitive agreements, including cartels,
and inadmissible concerted actions.
In the first part of the Clarification, the FAS explains what
should be understood as anticompetitive agreements. The
Clarification states that the concept of "agreement" is
broader than the concept of "civil" contract, and failure
to observe the form of a civil contract does not, therefore, serve
as evidence that no anticompetitive agreement exists. Apart from
this, the first part of the Clarification is devoted to describing
the provisions of article 11 of Federal Law No. 135-FZ of 26 July
2006 on Protection of Competition (the "Law") and
contains no new conclusions from an enforcement standpoint.
The second part of the Clarification deals with inadmissible
concerted actions, described in Article 11.1 of the Law. Citing
article 8 of the Law, the FAS emphasizes that concerted actions are
characterized by a lack of an agreement between business entities.
At the same time, the FAS distinguishes three required
characteristics of concerted actions:
the outcome of the actions is of interest to each entity taking
the entities are aware of one another's actions;
the actions of some business entities are prompted by the
actions of other business entities.
The Clarification makes the important qualification that
concerted actions cannot be prompted by circumstances that operate
on all business entities equally. These include, for example, such
circumstances as a change in prices for raw materials, changes in
prices for goods on world markets, or a material change in
In court practice uncertainty remains with regard to the
demarcation of the elements of these violations, and similar
actions in similar circumstances are sometimes characterized
differently by antimonopoly authorities.
The third section of the Clarification deals directly with the
methods for proving inadmissible agreements and concerted actions.
Building on existing court practice, the FAS emphasizes that both
of these violations can be proved by direct evidence, but also by
the totality of indirect (circumstantial) evidence.
The FAS understands direct evidence of an anticompetitive
agreement to mean written evidence demonstrating the will of the
entities to reach an agreement: agreements directly; written
contracts; minutes of meetings; correspondence between the parties
to the agreement, including correspondence in electronic form.
Indirect evidence of an agreement, according to the FAS,
includes, for example, a lack of an economic justification for
behavior of one party to the agreement that creates an advantage
for another party and is not aimed at generating profit. Another
example of indirect evidence of an inadmissible agreement can be
the fact that the parties to the agreement are in actuality located
at the same address. Note that one item of indirect evidence is
insufficient for a violation to be regarded as proved; a
combination of such evidence is required.
The FAS concludes with a discussion of the ways that evidence of
inadmissible agreements or concerted actions can be gathered, such
as through analyses of the state of competition, inspections by the
FAS, examination of documents and items, and demands for
information from an entity under review.
On the whole, the Clarification contains no positions that are
new or previously unknown to court practice, and it can be regarded
as a review of the current state of affairs in proving the
existence of anticompetitive agreements and concerted actions.
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