Ruling of the RF SAC of 12 May 2012 No. 1063/12, Resolution of the Presidium of the SAC of 30 July 2012 on case No. А10-11/2011 (as of 27 August 2012, the full text of the resolution has not yet been published)

25.09.2012

State arbitration courts have considered a dispute between the state antitrust authority and OAO Buryatnefteproduct. In its resolution, the Presidium of the RF SAC answered the question as to whether it is lawful to recognise a person as guilty of unfair competition if the case was initiated on the basis of abuse of dominant position.

The Presidium of the RF SAC has stated that insufficiency of evidence for classing a company’s actions as abuse of dominant position may not constitute grounds for classing them as unfair competition. Unfair competition presupposes use of non-market (information) means for acting on competitors. The RF FAS had not, however, established such violations and included therein the possibility of acquiring and storing petroleum products only within the vertically integrated structure of TK Rosneft.

Thus, acts of the antitrust authority reclassing the unproven abuse of dominant position (by virtue of it not being possible to prove actual dominant position or for other reasons) as unfair competition may be effectively challenged in court.

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