FAS received a new program to combat anti-competitive agreements

The White House has approved an anti-cartel program for 2024–2028. The damage from them in the area of ​​government procurement alone is estimated at 2% of GDP annually. In the new document, the FAS proposed concentrating on the digitalization of identifying anti-competitive agreements and spreading the practice of “soft law” – creating conditions for companies to voluntarily admit to violations. Experts believe that the document continues the ideas of the previous program and focuses on identifying cartels in the public sector – at auctions. The work of the FAS in the markets is difficult, and, judging by the document, the service does not yet plan to increase its activity there.

The White House unveiled an interagency program to identify and combat cartels and other anti-competition agreements for 2024–2028. It continues the ideas of the 2019–2023 program with increased interagency cooperation to combat cartels. From government order No. 512-r dated March 5, 2024, it follows that the action plan has been developed in three areas: digitalization of methods for identifying anti-competitive agreements, education and training, as well as practical activities, including analysis of legislation, work on recovery in courts illegally income received and increasing the efficiency of enforcement proceedings for the collection of fines.

The FAS will have to develop the Anti-Cartel state information system by the end of 2025 and introduce it into the work of the antimonopoly authorities in the next two years. It is expected that the system will allow identifying signs of violations of antitrust laws based on big data and artificial intelligence. FAS Kommersant reports that it is exploring the possibility of integration with information systems of other government agencies and with commercial systems. The service will also focus on the implementation of “soft law” norms, which provide for the voluntary submission of confessions in order to be exempt from liability: the department will formulate the conditions for their implementation (the measures have not yet been specified). At the same time, the service is already recording the positive dynamics of voluntary confessions about the conclusion of cartels. Managing Partner of Kulik & Partners Law.Economics Yaroslav Kulik acknowledges the increase in the number of voluntary confessions filed as part of an investigation that has already begun. However, he believes, until the institutions of exemption and relaxation of liability for cartels in criminal and antimonopoly legislation are legislatively synchronized, the culture of behavior of violators in this area will not change significantly.

The FAS notes the positive effect of the previous anti-cartel program: in 2023, the FAS opened 287 cases of such agreements and coordination of economic activities. Nevertheless, the damage from cartels remains large: in the field of public procurement alone it reaches 2% of GDP per year, and the average amount of damage from cartels at auctions reaches 20% of the initial contract price, according to the latest FAS report on the state of competition for 2022.

Tatyana Kiparisova, a lawyer in the antimonopoly and regulatory practice of the VEGAS LEX law firm, however, finds it difficult to assess the effectiveness of the implementation of the previous anti-cartel program, since it was actually implemented under the conditions of alternating moratoriums on inspections, but notes that the service used other tools effectively. Partner at Melling, Voitishkin and Partners Nadiya Goreslavskaya believes that the effectiveness of the previous program was evident in the reduction in the number of identified cartels. “There have been significantly fewer violations as oversight, especially in terms of competitive procedures in public procurement, has increased, including through the use of digital tools,” she believes.

According to Yaroslav Kulik, the FAS anti-cartel policy is focused on suppressing cartels at auctions: according to clause 2, part 1, art. 11 of the Law “On Protection of Competition”, more than 90% of all anti-cartel cases were initiated in 2022. The choice is explained by several factors. Firstly, a simple, understandable and accessible object of control is budgetary funds and funds of state-owned companies; the activities of procurement participants are transparent as a result of the complete digitalization of this area. Secondly, reporting for this category of cases is simple, the mechanism for calculating fines has been worked out. Thirdly, business does not learn well from the mistakes of others, and the FAS digital systems do a good job of collecting evidence even without checks (according to the Unified Information System, the Federal Tax Service, control and accounting bodies, and the Federal Treasury). As a result, Yaroslav Kulik states, the FAS has no motive to look for cartels and other agreements in commodity markets – this is difficult and time-consuming, taking into account the legal positions of the plenum of the RF Armed Forces No. 2 of March 4, 2021.

Diana Galieva