Anti-competitive agreements in Russian courts (2008–2012): antitrust law implementation and interpretation

ABSTRACT

This article analyses antitrust enforcement practice in Russian courts in the area of competition-restricting agreements. The analysis is based on the court decision database of litigations with the Russian competition authority (the Federal Antimonopoly Service (FAS)). In the database litigations that officially started in the period 2008–2012 were included. Final court decisions were evaluated, taking into account litigation duration (sometimes up to 3 years). The database contains 400 cases, including 236 horizontal agreements and 164 other agreements (mostly vertical agreements). Based on the evidence of this database, important features and problems of the interpretation and implementation of competition law in Russia and priority areas of enforcement were identified. Antitrust policy was analysed taking into account the risks of type 1 and type 2 errors, including the problem of flexibility of prohibitions (per se vs Rule of reason (ROR) approaches), standards of proof and the problem of consistency of enforcement.

KEYWORDS:

• Competition law
• antitrust policy
• collusion
• vertical agreements
• Rule of reason
• per se

Acknowledgements

This article is an output of the Effects of Russian Antitrust Legislation Enforcement, a research project implemented as part of the Basic Research Program at the National Research University Higher School of Economics (HSE).

The database of anti-competitive agreements for this article was based on the data collected in the Laboratory of Antitrust and Competition Studies of the Institute for Industrial and Market Studies (IIMS) at the Higher School of Economics, under the guidance of Svetlana Avdasheva (for more information about the database see Avdasheva et al. (2016) and Avdasheva, Tsytsulina, Golovanova, and Sidorova (2015)).

The author is very grateful to Svetlana Avdasheva (Higher School of Economics) and Guzel Yusupova (Higher School of Economics) for important comments, recommendations and support.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. For more about this transformation, see Avdasheva, Dzagurova, Kryuchkova, and Yusupova (2011) and (Avdasheva & Shastitko, 2011a).

2. See more about ROR and per se and other enforcement problems (Makarov, 2014).

3. Litigation results are published on <www.kad.arbitr.ru>. For each case more information can be found at this site.

4. Also included were several cases with other banking cooperation agreements which actually led to the same kind of consequences as case A06-1580/2009 (cooperation of banks and construction firms in deposit placement).

5. The bank in this case required prior approval of the insurance company and pointed out that independent insurance companies often use the incompetence of customers and offer them insurance policies of companies on the verge of bankruptcy or already bankrupt, or without licences for certain types of insurance activities, etc.

6. See FAS Russia Order of 28.04.2010 N 220 ‘On approval of the order of the commodity market competition analysis’ (Registered in the Ministry of Justice of Russia 02.08.2010 N 18026).