Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation (SAC RF) No. 2123/12 of 10 June 2012 on case No. А04-192/2011


State arbitration courts have examined a dispute between OAO Rostelekom (the legal successor of OAO Dalsvyaz) and OOO Firma Amurselsvyaz. The dispute related to fulfilment of contractual obligations to pay for communications services and abuse of dominant position, manifested in more than eleven unilateral increases in the cost of the services under the agreement between the parties.

In its resolution, the Presidium of the SAC RF answered the questions as to whether a decision of the antitrust body on violation of the competition legislation constitutes evidence on a case subject to examination by courts in resolving the dispute.

An agreement was concluded between OAO Dalsvyaz (the respondent) and OOO Firma Amurselsvyaz (the claimant) under which the claimant provided the respondent with digital communications channels for temporary use for a fee. The agreement envisaged the claimant’s right to change the tariffs for the services unilaterally, which it did. In connection with the fact that payment of issued invoices was not received in the manner and by the times established by the agreement, the claimant filed a claim for recovery of debt with the state arbitration court.

In the belief that the claimant, holding a dominant position on the market for the services of providing digital communications channels for use on the territory of the Amur Region, the respondent went to the territorial administration of the Federal Antimonopoly Service. By decision of the Commission of the Administration of the FAS (AFAS) for the Amur Region No. 20 dated 16 March 2011, the claimant was found guilty of violating part 1, article 10 of Federal Law of 26 July 2006 No. 135-FZ “On Protection of Competition” (“the Competition Law”).

The court of the first instance rejected the respondent’s reference to the fact established by the Decision of the AFAS for the Amur Region of unlawful increase in the cost of services and required the respondent to pay the sum of the debt.

The conclusions of the court of the first instance were upheld by the courts of the appeals and cassation instances.

When the Presidium of the SAC RF considered the case, it stated that the fact established by the antitrust body of violation of a prohibition per se, contained in part 1, article 10 of the Competition Law, should be investigated by the courts, irrespective of whether or not it was challenged. The Presidium of the SAC RF noted that “it does not follow from the Civil Code of the Russian Federation that a right based on an agreement to change the payment for a service unilaterally provides grounds for considering this right as an unrestricted possibility to act at one’s own discretion, including in avoidance of the antitrust legislation, in particular the provisions of part 1, article 10 of the Competition Law”.

The dispute between the parties, as the Presidium of the SAC RF rightly noted, arose as a result of an unjustified increase in the tariff for a service, so establishment by the antitrust body of a violation of the legislation is immediately connected with the subject of the dispute and should be considered when judicial acts are issued.

The Presidium of the SAC RF thus confirmed the obligation of courts to take account of the given decision as evidence in disputes they examine and in which the same parties participate.

The judicial acts issued previously were recognised as violating uniformity of interpretation and application of rules of law by the courts and the case was remanded for review by the   State Arbitration Court of the Amur Region.

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