Third Antimonopoly Package


On 6 December 2011 the President signed Federal Law No. 401-FZ amending the Federal Law “On the Protection of Competition” and certain other legislative acts of the Russian Federation, and Federal Law No. 404-FZ amending the Administrative Offences Code of the Russian Federation.

The amendments are widely referred to as the “third antimonopoly package” and are aimed primarily at liberalising, improving and clarifying certain provisions of antimonopoly legislation. Most changes concern the Federal Law “On the Protection of Competition” (the “Law”) and relate to the provisions regulating agreements and agreed-upon actions limiting competition. In particular, the amendments introduce the concept of a “cartel” and provide an exhaustive list of agreements which are considered to be cartels. In addition, the amendments clarify the concept of “agreed-upon actions” and develop a separate article establishing prohibitions and requirements with respect to agreed-upon actions, and introducing the exceptions from the prohibitions. The concept of “vertical agreements” has also been improved and clarified.

The amendments also change the provisions of the Law regarding transactions on economic concentration (mergers, acquisitions, etc.) which require Federal Antimonopoly Service (the “FAS”) approval. In particular, the amendments clarify the extent of the extraterritorial application of the Law, introduce value thresholds for transactions involving foreign entities which perform activities in Russia, and expand the list of documents and information required to be submitted to FAS for approval of a transaction representing economic concentration.

Furthermore, the amendments aim at eliminating excessive administrative barriers to companies’ activities. In particular, the following requirements have been abolished: (i) the subjects of natural monopolies are no longer required to select financial organizations for rendering services solely by a tender or an auction; (ii) financial organizations are no longer required to notify FAS of certain agreements.

Amongst others, important amendments are made to the provisions of the Administrative Offences Code establishing liability for: (i) abusing a dominant position, and (ii) limiting competition agreements and agreed-upon actions. In particular, the Law specifies the applicable fines and their methods of calculation, and introduces new mitigating and aggravating factors to be considered when calculating a fine.

Furthermore, the amendments introduce administrative fines for abusing the requirements for submitting applications and notifications according to the legislation on foreign investments. The maximum amount that can be imposed as a fine is RUB 500,000 (for failure to submit notifications) and RUB 1,000,000 (for failure to submit applications).

The Laws entered into force on 6 and 7 January 2012, respectively.

For further information please contact Igor Ostapets, Grigory Chernyshov or Irina Dmitrieva in the Moscow office of White & Case, tel + 7 495 787 3000 .