“Pyaterochka” is not allowed to turn around – Business – Kommersant
[ad_1]
The Supreme Court (SC) of the Russian Federation gave an expanded interpretation of the norm of the law on trade, which prohibits grocery chains with a share of more than 25% in the settlement to open new stores there. The precedent decision was made in the framework of the dispute between Pyaterochka and the Federal Antimonopoly Service. The Economic Board of the Armed Forces recognized that it is necessary to take into account not only the nominal retail space, but also what profit they bring. Thus, replacing a non-working store with a working one can lead to an increase in the share in the local market, and it is the chain that must prove that this did not happen. Lawyers believe that the decision will make it more difficult for chains to manage stores and open new outlets.
Agrotorg LLC (operating under the Pyaterochka brand, part of the X5 group) lost a case in the Supreme Court for violating Art. 14 of the trade law. This follows from the court decision published on August 17. The dispute arose as a result of an audit conducted in 2019 by the FAS department for the Moscow Region. According to the materials of the audit, in 2018 the chain illegally opened a new store in Orekhovo-Zuevo near Moscow, having at that time a share in the city of more than 25%. The department demanded that the store’s lease agreement be declared invalid.
The Arbitration Court of the Moscow Region in March 2021 satisfied the claim. The court noted that the law directly prohibits “further development of the trading network in case of exceeding 25% of the volume of all food products sold in monetary terms for the previous financial year”, and the concluded agreement violates this prohibition. The appeal and cassation, on the contrary, supported the retailer. According to the authorities, it was necessary to establish an excess of the share of the turnover of the network in Orekhovo-Zuevo for 2017. In addition, the decisions note that Perekrestok, which is part of the X5 group, terminated the lease of premises in the same city in September 2018, so the opening of a new store by Pyaterochka is just a replacement.
The Federal Antimonopoly Service appealed the refusal to the Supreme Court, insisting that the courts had incorrectly applied the norms of the law. The case was referred to the economic board, which supported the service.
The Supreme Court acknowledged that the termination of the lease of one of the Perekrestok stores “could not serve as a basis for Agrotorg to open a new Pyaterochka chain facility,” since the closed store had not been operating since 2016 and did not affect the share of revenue.
The opening of a new point, on the contrary, “created the prerequisites for increasing the share.”
According to the Supreme Court, the FAS’s demands to terminate the contract may be denied in exceptional cases if the network proves that the acquisition of additional space “did not lead to an increase in the share of sales occupied by the group in the corresponding calendar year” and measures are taken to reduce the market share to an acceptable level . In this case, the courts have not established such exceptional circumstances, the Supreme Court noted.
Thus, by the day the disputed agreement was concluded, the X5 Retail Group occupied “more than 25% of the food products market within the boundaries of Orekhovo-Zuyevo”. X5 “should have taken measures to reduce the share” in this city. But the company did not provide evidence of this, the Supreme Court stressed. X5 Group (Pyaterochka, Perekrestok, Karusel, Chizhik), Magnit, Lenta and Metro networks declined to comment.
Maria Kanuntseva, senior lawyer at Kulik & Partners Law.Economics, says that Pyaterochka’s disputes with the Federal Antimonopoly Service on trade law “have a long history,” and before that the company “led the case with a score of 4:0.” However, there were other questions raised. The essence of the new position of the Armed Forces is that it is necessary to evaluate “a change in the share of an entity in the city’s grocery market, and not a formal reduction or preservation of retail space,” the lawyer explains.
According to Aleksey Kostovarov, partner at Liniya Prava, this is a broad interpretation of Art. 14 of the law on trade, which prohibits large chains from expanding retail space, which did not happen here. The position of the Supreme Court is explained by the fact that the ban under Art. 14 “is aimed at preventing market monopolization and network abuse of its position,” says Ilya Kozhevnikov, lawyer at BGP Litigation’s competition law practice.
Now, in the case of opening a new outlet of the network, it is necessary to prove that it will not increase the amount of revenue in this local market.
“But how to do this, the Sun did not explain. It is also not clear how to objectively assess the market situation and the share of competitors,” notes Mr. Kozhevnikov. As a result, the lawyer warns, “in fact, any decision, with the exception of not acquiring additional space, will be risky for the retail chain.” Aleksey Kostovarov agrees that the decision will encourage retail chains to take a more strict approach to complying with the ban and may create difficulties in their work, in particular, “it will not allow them to quickly respond to the changing situation in certain territories.”
Meanwhile, amendments came into force on June 15, allowing food chains with a share of more than 25% to acquire (lease) the premises of foreign companies that left the Russian Federation. “However, this measure is temporary (until the end of 2022), forced and, in fact, still does not add flexibility in managing networks of its own stores,” notes Mr. Kostovarov. If the acquisition of new retail space does not fall under the terms of the amendments, adds Ilya Kozhevnikov, then the ban for networks is in effect, and the new position of the Supreme Court will apply to their transactions.
[ad_2]
Source link