The business has a good chance to win in court disputes with the Federal Antimonopoly service for antitrust violations comes from the expert “Bulletin of the Antimonopoly statistics for 2019”. Statistics shows the growth of disputes in cartel cases and the intensification of prosecution of him. Fears of experts, commenting on the calculations of the Bulletin, cause the standard of proof of the existence of cartels and the punitive approach of the FAS in relation to them. In the service of an increase in the number of criminal cases related antitrust cases, explain the need to follow the instructions of the President on the fight against cartels, but in General the statistics to appeal to the dispute do not agree.For 2019, the courts issued 739 breaches of the law “On protection of competition” (FZ-135) for the most popular claims of the FAS to the business about the dominance of companies in the market and anti-competitive agreements (article 10 and 11), but in a third of cases, the entrepreneurs able to challenge the decision of FAS, to be prepared by a member of the expert Council under the government of Vadim Novikov, “the antitrust Bulletin of statistics”. The percentage of cases in which the requirements, is reduced. So, in whole or in part in 2019, the business was able to challenge the decision in 37% of cases vs 41% in 2018. Managing partner of Kulik & Partners Law.Economics Yaroslav Kulik explains that the decline in the quality of work of arbitration courts. “Judges often simply copy the position of the Antimonopoly bodies, without overloading the text with motivations,” he says. Overall, the business has fairly high chances of winning in court, regardless of the type of cases: only in the first instance, the entrepreneurs able to challenge decisions under article 10 and 11 to 34% and 41%, respectively (36% and 50% in 2018).Negative, according to the authors of the Bulletin, the trend is a significant increase in the number of proceedings in a cartel — they account for one third of disputes. The cited experts agree that such cases mainly concern violations of the trading, not the “classic cartels”. “An increasing amount of Finance is allocated through auction, which increases the number of public procurement and the scope of potential violations. FAS is directing more attention and effort to control in this sphere”,— says the managing partner of the expert group Veta Ilya Zharskiy. Thus in cases of cartels is often a small business with a turnover of 400 million rubles, which can not limit competition: in total they account for 49% of court disputes with the Federal Antimonopoly service. As suggested by Vadim Novikov, a small business can indeed violate the law, for example, to simulate competition, attracting trading dummy parties, “but it’s not the cartels, the Antimonopoly composition in such cases, in fact, pulls”.Experts commenting on the statistics Mr. Novikov, pay note that the situation becomes alarming cartels: in 2019, the trend of criminal prosecution (article 178 of the criminal code) companies for cartels at lower standards of proof cartel. This contributes to the “how cartel policy and legislative initiatives of the FAS on the toughening of responsibility for the cartels,” said Mr. Kulik. Previously, the service has achieved stricter criminal liability for cartels and strengthen the “cartel” of the powers of the FAS, but the project has faced criticism of business and of deputies (see “Kommersant” on 2 December 2019). However, yesterday’s decision of the Samara regional court for review of sentence to the head of LLC “Modern medical technologies” Sergey Shatilo on charges of commercial bribery and bid-rigging has given hope to opponents “criminal bias” in the actions of the FAS. “The criminal court does not automatically accept the prosecution is a positive signal,” — said Vadim Novikov.The FAS criticism experts disagree, explaining that they use “questionable methods”. “If in 2012 were appealed against more than 90% of decisions rendered in cases of cartels and other anticompetitive agreements and canceled almost a quarter of the decisions taken, in 2019 in the court appealed 36% of decisions by the courts and cancelled 3% of the decisions”,— explained the head of Department FAS on struggle against cartels Andrey Tenishev. The increase in the number of criminal cases in the service do not deny it, explaining that service and law enforcement agencies carry out the President’s Directive to tighten liability for cartels.Diana Galieva
