CHANGES TO LEGISLATION
The legal regulation of the institution of antitrust compliance at the level of federal legislation is provided for by the National Plan for the Development of Competition in the Russian Federation for 2018-2020.2 From March 12, 2020, amendments entered into force, according to which the concept of antitrust compliance and the basic requirements for him (hereinafter - Changes).
The concept of antitrust compliance: the law has a definition of “an internal system to ensure compliance with the requirements of antitrust law”, which is understood as a set of legal and organizational measures aimed at compliance by the company with the requirements of antitrust law and prevention of its violations (hereinafter referred to as the Antitrust Compliance System). The definition adopted by the legislator reflects the traditional approach to antitrust compliance as one of the institutions for preventing the violation of antitrust laws.
According to the explanatory note to the draft Amendments, the effectiveness of measures to stimulate compliance with antitrust laws / J indicates the need to develop such mechanisms. One of the tools to prevent violations of antitrust laws and reduce antitrust risks for business entities is the Antitrust Compliance System.
Voluntary principle: the implementation of the Antitrust Compliance System is a right, not an obligation, of a company. When a company makes a decision to implement the Antitrust Compliance System, the company, as a general rule, is free to make such a decision. At the same time, there are exceptions to this principle, which we will consider in more detail below.
- requirements for the procedure for assessing the risks of violation of antitrust laws related to the activities of the company;
- measures to reduce antitrust risks; measures to monitor the functioning of the Antitrust Compliance System;
- the procedure for familiarizing employees of the company with internal documents on the antitrust compliance system; Information on the official responsible for the operation of the Antitrust Compliance System.
In addition, companies are entitled by their local acts to include additional requirements for the organization of the Antitrust Compliance System.
Thus, the legislator, fixing only the general list of requirements for documents, leaves the possibility for companies to most effectively build an Antitrust Compliance System taking into account the specifics of their activities.
Placing information on the Antimonopoly Compliance System on the website: information on the internal documents on the antitrust compliance system adopted and used by the company in Russian is subject to publication on the company's website in Russian. Mandatory is the placement of information on documents, while the mandatory placement of the documents themselves is not provided for by law.
The possibility of coordinating antitrust compliance systems with the FAS Russia FAS Russia within thirty days considers these documents (projects) and gives a conclusion on their compliance or non-compliance with the requirements of antitrust laws.
The explanatory note to the Amendments indicates that if the FAS Russia issues a conclusion on the compliance of documents or draft documents on antitrust compliance measures with the requirements of antitrust laws, a company cannot be deemed to have violated antitrust laws if its actions are carried out within the framework of the agreed rules of the Antitrust Compliance System.
However, this rule is contained only in the explanatory note and is not in the Changes. Nevertheless, the company has the right to refer to the implementation of actions in accordance with the FAS Russia Antimonopoly Compliance System and the absence of violation of antitrust laws. In case of disagreement with the above arguments, the FAS Russia will need to indicate in the decision the evidence on which its conclusions are based, and provide reasons for rejecting the arguments on the compliance of the company's actions with the Antitrust Compliance System.
PRINCIPLE OF VOLUNTARY
Despite the fact that the changes came into force only now, antitrust compliance has long been a part of Russian legal reality. 06 this is evidenced by the successful use of antitrust compliance by some companies in the Russian Federation, as well as numerous discussions and discussions of the institution of antitrust compliance in the scientific and professional community.
Nevertheless, the question remains whether it is necessary to introduce antitrust compliance in the company, if it is optional. in some cases, this issue is replaced by the statement that the company does not need antitrust compliance, since it is not mandatory.
It should be noted that the principle of voluntariness may have exceptions.
In the practice of the antimonopoly authorities, there are cases of the introduction of certain elements of the antimonopoly compliance through the FAS Russia behavioral regulations in the framework of proceedings or as part of the coordination of economic concentration transactions.
Moreover, in 2018, as part of the approval of the transaction, the economic concentration of the FAS Russia issued the applicant an order containing the requirement to develop and coordinate with the FAS Russia an antitrust compliance system.
Recall that by virtue of Art. 36 of the Law on Protection of Competition, the requirements of the antimonopoly authority are binding. thus, issuing a prescription to companies with the requirement to introduce an antitrust compliance system or its individual elements imposes corresponding execution obligations on such a company.
Considering the indicated practice of the antimonopoly body, we will consider the issue of the correlation of the following norms of the Law on Protection of Competition:
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on the right of an economic entity to organize an Antitrust Compliance System in order to comply with antitrust laws and prevent its violation (norm 1);
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on the right of an economic entity to coordinate the Antimonopoly Compliance System with the FAS Russia (norm 2);
- on the authority of the antimonopoly authority to issue instructions on the development and approval of the Antimonopoly Compliance System (on actions to ensure competition) with the Federal Antimonopoly Service of Russia when considering a case of violation of the antimonopoly legislation, as well as in the event of a decision to coordinate an economic concentration transaction (norm 3).
Despite the lack of law enforcement practice that would address the issue of the relationship between these norms, it seems that the differentiation of norms 1-3 can be carried out according to the objectives of their implementation:
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with regard to the right of an economic entity, the goal of implementation is to comply with antitrust laws and prevent its violation;
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with regard to the authority of the antimonopoly authority to issue a precept, the aim of implementation is to ensure competition.
In addition, the antimonopoly authority may oblige the business entity to adopt and agree on the Antimonopoly Compliance System only in cases specified by law, based on the results of the consideration of a case of violation of the antimonopoly legislation, as well as when deciding on the approval of an economic concentration transaction.
COMPLIANCE NEEDED?
Even in cases where a company does not have an obligation to introduce antitrust compliance, the mere existence of a legal norm on the optionality of antitrust compliance is not an sufficient argument for refusing to introduce such a system. To make an informed decision on the implementation of the Antitrust Compliance System, it is recommended that the following circumstances be considered:
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antitrust compliance is not a burden, but the possibility of increasing the effectiveness of decision-making and actions in the company by eliminating or reducing antitrust risks;
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it is necessary to compare the potential negative effect of the implementation of antitrust risks with financial, temporary;
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consideration of this circumstance as extenuating.
In order for the FAS Russia to take into account the presence of the Antimonopoly Compliance System when brought to administrative responsibility, it is necessary to prove the functioning of the Antitrust Compliance System. Currently, the criteria for recognizing the Antimonopoly Compliance System as functioning are absent in the legislation, and also are not formed in law enforcement practice. The functioning of the Antimonopoly Compliance System will be assessed based on their circumstances.
In addition, the functioning of the Antimonopoly Compliance System is taken into account during scheduled inspections by the antimonopoly authority. The frequency of inspections depends on the risk category of the company: for companies with an average risk category — expiration of three years from the date of the last scheduled audit, the creation of a company, for companies with a moderate risk category — expiration of five years, for a low risk category — not carried out.
The risk category of a company can be reduced if the following conditions are combined:
Despite the above advantages of introducing the Antimonopoly Compliance System, in practice the question may arise: is it more rational to use the company's resources at the risk implementation stage, for example, when the antimonopoly body sees signs of antimonopoly legislation violation in the company's actions? However, this approach significantly reduces the ability of the company to eliminate or minimize the risks of violation of antitrust laws.
The actions of the company, which show signs of violation of the antimonopoly legislation, in the absence of a convincing economic and other justification for the actions taken by the company, are highly likely to be qualified as violating the antitrust laws.
Thus, strategically, it is more beneficial for the company to conduct serious preliminary legal work on risk assessment, as well as conduct business activities in compliance with the rules of the Antitrust Compliance System. As a result of such work, the company will formulate a better and more convincing justification of its actions for their compliance with antitrust laws and will significantly reduce the possible negative effect of the implementation of risks.
You can find the full version of the article here: https://ao-journal.ru/journal/lib/ejournal/detail/ArticleID/1853/%d0%9f%d0%be%d0%bf%d1%80%d0%b0%d0%b...
