Anti-monopoly legislation: current judicial practice regarding concerted actions.
LEGAL UPDATE No. 43.
Goltsblat BLP advises that the Presidium of the Supreme Arbitration Court of the Russian Federation (SAC RF) has passed a resolution on case No. 15956/08 recognising as invalid decisions and prescriptions of the Administration of the Federal Antimonopoly Service (FAS) of the Republic of Tatarstan regarding foodstuff supply agreements concluded by a number of major retail companies (retail networks).
The given resolution expands on the legal positions expressed in clarifications of the Plenum of the SAC RF to resolution No. 30 of 30 June 2008 “On certain matters arising in connection with application of the anti-monopoly legislation by state arbitration courts” with respect to establishing, in the absence of documented proof of any agreement, whether economic entities have engaged in concerted actions.
Let us recall that clause 2 of the above-mentioned resolution No. 30 draws the attention of the courts to the fact that concerted actions on the part of economic entities (article 8 of the Federal Law “On Protection of Competition”) may be determined even if there is no documentary evidence of a relevant agreement. The actual circumstances under which concerted actions are carried out can provide grounds for concluding that one of the conditions for recognising actions as concerned does indeed exist, namely: each of the economic entities is aware in advance of the given actions. For instance, concerted actions may, among other things, be evidenced by their being performed relatively similarly and in conjunction by different market participants, in the absence of objective reasons for this.
When considering the given case, the SAC RF Presidium formulated the following key conclusions:
The anti-monopoly authority has the right to take the actual result of concerted actions as proof of their existence. To do so, they may establish the products, geographical coverage and level of the relevant market, analyse the market situation and determine that the economic entities are behaving similarly on this market;
The fact that each of the entities involved was aware of the concerted actions may be established, among other things, from the overall situation on the commodity market making such behaviour predictable as a group model for deriving non-competitive advantages;
It is not essential for actions to be launched simultaneously by economic entities for them to be recognised as concerted; it suffices that they exist when identified by the anti-monopoly authority.
In addition, the following was stated specifically with respect to the supply agreements between the networks and suppliers of foodstuffs:
In order to prove concerted actions, the FAS must compare the actions of each entity recognised as a participant and, in the given case, the actual terms of the agreements between different retail networks and suppliers;
Yet, even if the agreements are worded differently, the price terms and other conditions depriving suppliers of rights they usually enjoy under such agreements must be evaluated, as must the returns required for maintaining and developing production.
The position taken by the SAC RF will allow the anti-monopoly authorities to prove more effectively in court that market participants have engaged in concerted actions.
The conclusions contained in the Resolution on case No. 15956/08 may, moreover, have an impact on how regulation of trade in the Russian Federation develops.
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