FAS wants to expand the grounds for revising its requirements

The Federal Antimonopoly Service (FAS) has published draft amendments to Part 11 of Art. 33 of the Law “On Protection of Competition”, which expands the grounds for reviewing the content or procedure for executing the service’s instructions. If the draft is adopted, such a basis will be “a significant change in the conditions of circulation of goods on the commodity market,” and a separate article will appear in the law. 51.3, which describes the procedure for such a review – at the request of the company or at the own initiative of the antimonopoly authority.

In the current version of the law, review of orders issued by the FAS, which relate to the elimination of violations when monitoring concentration levels, is permitted in the event of “the occurrence of significant circumstances that occurred after the order was issued and exclude the possibility and (or) advisability of executing the order in whole or in part.” The law includes changes in the product or geographic boundaries of the product market, the composition of sellers or buyers, or the loss of a dominant position by an economic entity.

The essence of the proposed changes is to allow the FAS to change or cancel the requirements of the regulations, even if they can be fulfilled.

In the explanatory note, the service directly refers to “sanction pressure” and “anti-crisis measures being taken” as the reasons that required amending the law. The current “list of grounds for reviewing orders issued by the antimonopoly authority as part of state control over economic concentration is not flexible enough for the antimonopoly authority to promptly respond to changes in market conditions,” the document says.

Another innovation is the inclusion in the list of grounds for review of “inconsistency of the guidelines for setting the price of a product specified in the regulation with the general conditions of circulation of the product on the commodity market.” De facto, we are talking about the fact that after losing access to international price indicators as a result of the Russian military operation in Ukraine, companies lost the ability to comply with orders issued when Russia was seen by the authorities as part of the global market and could use “external” benchmarks, and the development of new ones is only being discussed (see “Kommersant” dated February 22). In particular, a number of regulations, for example in the non-ferrous metals markets, contain price targets published by information and analytical agencies of unfriendly countries.

“The corresponding regulations do not reflect the current situation in commodity markets in the Russian Federation, they carry risks for the country’s economic security and require revision,” says Kommersant’s interlocutor familiar with the discussion of the topic. The need to switch to your own price information requires reliance on domestic market participants, which creates risks of data manipulation.

The same situation forces the FAS to seek an extension of the period for reviewing regulations to find solutions to such problems to two months “due to the need for additional consideration, as well as obtaining additional information.”

The service itself notes that the amendments are aimed at “flexibility and improvement of antimonopoly legislation in order to adapt and respond to changing conditions in product markets, and the FAS should have appropriate grounds for promptly changing regulations.” A company that has already been issued an order (both in the area of ​​control of economic concentration and based on the results of consideration of cases of violation of antimonopoly legislation) can apply to the service for a review of the order. The FAS will evaluate the grounds for revision, as well as how a possible adjustment to the regulation will affect competition and consumers. Accordingly, the changes will not lead to a decrease in competition, the service is convinced.

Oleg Sapozhkov, Diana Galieva