Evidence and the Burden of Proof in Russian Antimonopoly Cases: A Practitioner's Guide

 

February 3, 2025

BRACE Law Firm ©

 

The institution of evidence is a critical component of Russian law. The evidence collected in antimonopoly cases determines the decisions rendered by regulatory authorities and courts.

In 2016, the fourth antimonopoly amendments package [1] introduced Article 45.1 into Federal Law No. 135-FZ dated July 26, 2006, On Protection of Competition (the "Law on Protection of Competition" or "Law No. 135-FZ"). This article regulates the concepts of evidence and the burden of proof in cases involving violations of antimonopoly legislation. However, when antimonopoly authorities and courts examine these cases, economic entities still frequently encounter challenges related to proving the presence or absence of legal violations.

This article examines the types of evidence used in antimonopoly cases and the specific features of the proving process.

The Concept and Types of Evidence in Antimonopoly Cases

According to Part 1 of Article 45.1 of the Law on Protection of Competition, evidence means factual information obtained in the manner prescribed by the Law on Protection of Competition, based on which the commission establishes the presence or absence of a violation of antimonopoly legislation, the validity of the arguments of the parties involved in the case, and other circumstances significant for a full and comprehensive examination of the case.

Evidence may be direct (evidence that allows for a definite conclusion regarding a fact to be proven) and indirect (evidence that provides grounds for assumptions regarding a sought fact and, in aggregate, may signify such a fact). For example, a written agreement on pricing policy serves as direct evidence of a cartel agreement. At the same time, antimonopoly authorities actively utilize indirect evidence. In bid-rigging cases, for instance, antimonopoly authorities often conclude that a violation exists based on a combination of indirect evidence, such as competitors using a shared infrastructure (a shared IP address of procurement participants, a shared contact phone number, email, location, etc.).

For example, in Case No. A40-55695/2021 [2], FAS Russia established that Company A and Company S submitted bids for an auction to supply modular obstetric-feldsher stations from the same IP address. The bids were created and modified by the same person at the same time, and the price reductions were minimal. The authority found the companies in violation of the ban on anticompetitive agreements resulting in price maintenance at auctions. The courts agreed that the antimonopoly authority proved the conclusion of an anticompetitive agreement by the bidders.

The Law on Protection of Competition permits the following as evidence in cases involving violations of antimonopoly legislation:

• documentary evidence;
• physical evidence;
• explanations from persons participating in the case and persons possessing information regarding the circumstances under consideration by the commission;
• expert opinions, audio recordings, and video recordings;
• other documents and materials.

As shown, the list of evidence remains open. For example, in its Review of Judicial Practice on competition protection and administrative offenses in this field, the Supreme Court of the Russian Federation stated that materials (or copies thereof) from criminal cases may be used as evidence in cartel cases, regardless of whether a criminal verdict has been rendered [3].

The specific features of these types of evidence in antimonopoly cases are discussed below.

Documentary Evidence in Antimonopoly Cases

Documentary evidence is undoubtedly the primary type of evidence in cases involving violations of antimonopoly legislation.

According to Part 4 of Article 45.1 of the Law on Protection of Competition, documentary evidence includes certificates, contracts, statements, correspondence, and other documents and materials containing information on circumstances significant to the case, produced in digital or graphic form, including those obtained via facsimile, electronic, or other communication, or by making copies of electronic storage media, or by any other method allowing the authenticity of the document to be established.

Notably, antimonopoly practice allows not only official acts and contracts but also minutes of meetings, correspondence between parties to an agreement, and similar materials to serve as documentary evidence. This position is set forth in Clarification No. 3 of the Presidium of FAS Russia dated February 17, 2016, On Proving Prohibited Agreements (Including Cartels) and Coordinated Actions on Commodity Markets.

For instance, in Case No. A40-63445/11-153-559 [4], FAS Russia found that a company’s actions violated the prohibition on the abuse of a dominant position, manifested as an economically and technologically unjustified refusal to supply components for aircraft repair. The authority indicated in its decision that the refusal to supply was confirmed by correspondence between the company and its counterparties. The company attempted to challenge the administrative liability order, citing an inability to produce the necessary components. The courts held that the fact of the administrative offense was proven.

In light of such precedents, legal practitioners point out [5] that a company’s stance of "not explaining anything to market participants and bringing evidence to FAS only if necessary" may lead to negative results. They recommend that companies carefully manage correspondence with other economic entities and ensure that the rationale for their actions or omissions is reflected in such correspondence.

Antimonopoly authorities frequently use electronic evidence. The sources for such evidence include mass media, websites, email, flash drives, CDs, local computers, or servers. Antimonopoly authorities also obtain electronic evidence from internet service providers and telecommunications operators. Furthermore, electronic evidence may be obtained from economic entities and government authorities, who are required under Part 1 of Article 25 of the Law on Protection of Competition to provide documents and materials, including those in digital form or on electronic media, upon a reasoned request from the antimonopoly authority.

For electronic evidence — especially that obtained from open sources — to serve as the basis for a decision, it must be legalized. The Law on Protection of Competition does not regulate the procedure for legalizing electronic documents. In practice, this is most often done by the antimonopoly authority drafting an inspection report or minutes. Economic entities may use notary services to record evidence. Antimonopoly authorities also accept screenshots of materials posted on the Internet as evidence, provided they include the URL of the webpage from which the printout was made.

A specific type of documentary evidence is the analytical report prepared based on the results of a competition status analysis. As a general rule, conducting an analysis of the state of competition in a commodity market is mandatory to prove a violation of competition protection legislation (Part 5.1 of Article 45 of the Law on Protection of Competition). FAS Russia also maintains that an analytical report is a mandatory stage in the examination of every case involving a violation of antimonopoly legislation, regardless of the nature of the alleged violation [6].

The procedure for analyzing the state of competition in a commodity market is approved by FAS Russia Order No. 220 dated April 28, 2010. According to Paragraph 11.1 of this Procedure, an analytical report must include:

• general provisions (the purpose of the study, a description of the sources of initial information, including the antimonopoly authority’s opinion on information sources recommended by market participants);
• information on the selected time interval for the study;
• conclusions regarding the product boundaries of the commodity market, justifying the choice of determination method;
• conclusions regarding the geographic boundaries of the commodity market, justifying the choice of determination method;
• information on the composition of economic entities operating in the commodity market under consideration;
• information on the volume of the commodity market and the market shares of economic entities;
• conclusions regarding the level of concentration in the commodity market;
• information on barriers to entry into the commodity market;
• an assessment of the state of competition in the commodity market.

As clarified in Paragraph 56 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 4, 2021, On Certain Issues Arising in Connection with the Application of Antimonopoly Legislation by Courts (the "Plenum Resolution No. 2"), an analytical report does not predetermine conclusions regarding the presence or absence of an antimonopoly violation. It possesses no predetermined weight relative to other evidence and must be evaluated by the court alongside other evidence presented in the case.

Furthermore, opinions on competition analysis prepared by other persons with specialized knowledge — including those commissioned by parties involved in the antimonopoly proceedings — may also be accepted by the court as evidence. When the reliability of findings in an analytical report is challenged, the court has the right to order the antimonopoly authority to produce the primary materials upon which the conclusions were based or to appoint an expert examination regarding the competition analysis.

Violating the statutory requirements for an analytical report may lead to the antimonopoly authority’s decision being declared invalid. For example, in Case No. A40-172155/2022 [7], FAS Russia found that a joint-stock company violated the prohibition on the abuse of a dominant position by maintaining monopolistically high prices for providing linear cable communication facilities. Disagreeing with the decision, the joint-stock company applied to the court to invalidate the decision and the order of the antimonopoly authority. During the proceedings, it was established that the antimonopoly authority committed violations when defining the product and geographic boundaries of the commodity market during the preparation of the analytical report. The court ruled that the antimonopoly authority's conclusions regarding the company creating barriers to entry for economic entities into the adjacent telematic services market were not supported by evidence. The decision and the order of the antimonopoly authority were declared invalid.

Physical Evidence in Antimonopoly Cases

Physical evidence in a case involving an antimonopoly violation includes objects that, by their appearance, properties, location, or other characteristics, can serve as a means of establishing circumstances significant to the case (Part 5 of Article 45.1 of the Law on Protection of Competition).

For example, product packaging in unfair competition cases may serve as physical evidence. In Case No. A55-22387/2020 [8], the antimonopoly authority identified signs of unfair competition in a company's actions, which involved introducing dairy products into civil circulation in packaging that imitated the packaging of a product manufactured by another person. As part of the evidence used to reach this conclusion, the UFAS commission examined the design of both packages.

Physical evidence is encountered much less frequently in antimonopoly proceedings than documentary evidence. Consequently, there is limited practice regarding the rules for presenting and evaluating physical evidence. Physical evidence is attached to the file of the antimonopoly violation case.

Explanations as Evidence in Antimonopoly Disputes

Under Article 42 of the Law on Protection of Competition, the persons participating in a case involving an antimonopoly violation are:

• the applicant (the person who filed the application, or the state or municipal authority that submitted materials to the antimonopoly authority);
• the respondent (the person against whom the application was filed or materials were submitted, or in whose actions or omissions signs of an antimonopoly violation were discovered);
• interested parties (persons whose rights and legitimate interests are affected by the examination of the case).

The law separately identifies explanations from persons possessing information regarding the circumstances under consideration by the commission. For example, in Case No. A74-12668/2016 [9], the antimonopoly authority found that an institution’s actions violated the prohibition on price maintenance at auctions. During the examination of the case, the UFAS commission obtained explanations from Company F. regarding the reasons for its passive behavior in the auctions. Disagreeing with the administrative liability, the institution appealed to the arbitration court, arguing that explanations from a person who was not a party to the case were inadmissible. The court ruled that explanations from a person possessing information about the circumstances under consideration constitute proper evidence in an administrative offense case and may serve as the basis for holding a person administratively liable.

Explanations may be provided in writing and attached to the case file, or provided orally during a commission meeting and recorded in the minutes.

Expert Opinions in Antitrust Disputes

An expert is a person who meets the qualification requirements approved by FAS Russia and possesses specialized knowledge regarding the issues involved in the case under consideration [10].

An expert examination may be ordered at any stage of an antimonopoly case. Researchers on this topic [11] note that economic expert examinations are widespread, as are technical examinations, including engineering-technical and construction-technical types. Patent law expert examinations are also typical when examining cases involving unfair competition. Linguistic expert examinations are actively used for issues regarding compliance with advertising legislation.

As with other evidence, an expert opinion has no predetermined weight, and a court may choose not to accept it. Reasons for rejection may include procedural violations or issues related to the content of the opinion itself.

For example, in Case No. A27-16474/2016 [12], the respondent presented a linguistic expert opinion which, in its view, confirmed the absence of advertising law violations. Upon reviewing the opinion, the antimonopoly authority found that the expert was asked the following question: "Is the phrase 'The best coffee in the city' an incorrect comparison?". However, according to the outdoor advertising inspection report, the advertisement actually read: "The tastiest coffee in the city. At the lowest price!". The antimonopoly authority decided that the expert had analyzed a phrase that did not pertain to the disputed advertisement and refused to accept the opinion as evidence in the administrative offense case. The company was held administratively liable under Part 1 of Article 14.3 of the CAO RF and fined 100,000 rubles. The attempt to challenge the liability order in court was unsuccessful.

Procedure for Examining Evidence in Antimonopoly Disputes

According to Part 2 of Article 45.1 of the Law on Protection of Competition, every person participating in a case must disclose the evidence they rely upon as the basis for their claims and objections to the other parties involved in the case within the period established by the antimonopoly authority's commission.

Furthermore, Article 45.2 of the Law on Protection of Competition establishes that a commercial secrecy regime cannot be applied to explanations and other materials submitted at the initiative of a party involved in the case. This guarantee was introduced to prevent abuses by parties to the case.

However, information and documents submitted at the request of the antimonopoly authority that are subject to a commercial secrecy regime are provided for examination to the parties involved in the case under a signed acknowledgment and with the consent of the owner of such information and documents. Consent must be submitted to the antimonopoly authority in writing during the examination of the antimonopoly violation case. For instance, in Case No. A55-5051/2016 [13], a company provided documents subject to a commercial secrecy regime upon the antimonopoly authority's request. Subsequently, another participant in the antimonopoly case was denied access to materials containing commercial secrets because the owner had not provided consent. The attempt to challenge the antimonopoly authority's decision on the grounds of a violation of the right to examine case materials was unsuccessful in court.

It should also be noted that, under the provisions of arbitration procedural legislation, parties involved in a case may examine documents and information subject to a commercial secrecy regime in court.

Proving in Antimonopoly Cases

Proving consists of collecting, verifying, and evaluating evidence to establish circumstances significant to the case. Although Article 45.1 of the Law on Protection of Competition is titled "Evidence and Proving in Cases Involving Violations of Antimonopoly Legislation", it says almost nothing about the critical procedural act of proving. Therefore, we will consider the general principles of proving established in legal theory and applied by courts when examining antimonopoly cases and challenging the acts of antimonopoly authorities.

The Law on Protection of Competition does not contain specific rules governing the distribution of the burden of proof in antimonopoly cases. At the same time, it should be noted that the law establishes several evidentiary presumptions. For example, the presumption of dominance established by Article 5 of the Law on Protection of Competition requires the economic entity to prove the absence of a dominant position.

In accordance with Part 5 of Article 200 of the APC RF, when decisions of antimonopoly authorities are challenged in arbitration courts, the burden of proving to the court that the decision is legal and justified rests with the antimonopoly authority.

Evidence collection by the antimonopoly authority begins even before a case is initiated, for the purpose of deciding whether signs of an antimonopoly violation exist. The Law on Protection of Competition grants the antimonopoly authority broad powers for collecting evidence, such as:

• independently obtaining necessary documents, information, and explanations from government authorities, organizations, and individuals upon a reasoned request (Part 1 of Article 25 of the Law on Protection of Competition);
• during inspections of territories, premises, documents, and objects of the person under inspection, performing photography, filming, and video recording; taking copies of documents; and making copies of electronic storage media (Article 25.3 of the Law on Protection of Competition);
• requesting that authorities engaged in operational-investigative activities conduct operational-investigative measures (Article 23 of the Law on Protection of Competition).

Parties involved in a case also have the right to collect and submit evidence, though their capabilities are more limited than those of the antimonopoly authority.

Every piece of evidence must possess the properties of relevance, authenticity, and admissibility.

Relevance means that the evidence confirms or refutes circumstances within the subject of proof. This is illustrated by an example from enforcement practice. In Case No. 27 dated October 5, 2018 [14], involving a violation of antimonopoly requirements for auctions, a representative of an institution filed a motion to recognize apartments purchased under state contracts as physical evidence. The UFAS commission denied the motion, stating that the case concerned the actions of the customer in organizing and conducting a public procedure. The residential premises were not objects that could establish the presence or absence of a violation of antimonopoly requirements for auctions.

Evidence is recognized as authentic if, as a result of its verification and study, it is found that the information contained therein corresponds to reality.

For example, in Case No. A35-5996/2017 [15], the antimonopoly authority concluded that the packaging design of glue and sealant sold by Company I. was a derivative of the packaging design used by Company X. The UFAS ordered Company I. to cease actions associated with unfair competition by stopping the introduction of the products into civil circulation. The courts established that the antimonopoly authority based its decision on an analytical report and an expert opinion. During the proceedings, the court found that the expert’s study of the packaging was conducted by comparing photographs of the front side. Because packaging is a three-dimensional object, all elements of the packaging were required to be studied. The court ruled that the expert opinion and analytical report contained significant defects, making it impossible to recognize the evidence as authentic. The decision and order of the antimonopoly authority were declared invalid.

Admissibility of evidence means that case circumstances which, by law, must be confirmed by specific evidence, cannot be confirmed by other evidence. Evidence obtained in violation of the law may not be used.

Although the Law on Protection of Competition does not contain a specific provision prohibiting the use of evidence obtained in violation of the law, this principle is applied in practice by courts examining antimonopoly cases. In the aforementioned Case No. A35-5996/2017, the antimonopoly authority presented glue and sealant packaging to the court as physical evidence. However, as the court noted, the UFAS had failed to document the attachment of these items to the antimonopoly case file as physical evidence; instead, the items were stored in the office safe of one of the commission members without any special packaging or indication of their connection to a specific antimonopoly case. The items presented in the court hearing were not accepted as evidence in the case.

The admissibility of presenting additional evidence to a court should also be mentioned. As the Supreme Court clarified in Plenum Resolution No. 2, additional evidence is accepted by a court if the party requesting its admission justifies the impossibility of presenting it during the antimonopoly authority's examination of the case for reasons beyond their control, and the court finds these reasons to be valid. Violating this rule may result in adverse consequences for participants in antimonopoly proceedings.

For example, in Case No. A83-7497/2021 [16], the antimonopoly authority decided that individual entrepreneurs D., R., M., and P. entered into a competition-restricting agreement that led to price maintenance during auctions. Disagreeing with the UFAS decision, the entrepreneurs challenged it in an arbitration court. The court of first instance concluded that the shared IP address, the replenishment of accounts from a single wallet, and the minimal reduction in the initial maximum contract price did not, by themselves, prove a prohibited agreement. The similarities in the formatting of the entrepreneurs' bids — regarding form, content, word count, punctuation, and font — were caused by the fact that the same legal entity, Company Yu., provided bid preparation services. This was confirmed by service contracts for bid preparation presented during the court hearing. However, the court of appeals overturned the decision of the first-instance court. It reasoned that the antimonopoly authority had proven the bid-rigging through indirect evidence. The contracts with Company Yu. presented to the court could not be recognized as proper evidence because they had not been submitted for examination to the UFAS commission.

Every piece of evidence is subject to evaluation by the enforcement authority and the court. No evidence has predetermined weight. In the reasoning section of its decision, the antimonopoly authority must specify the evidence upon which its conclusions are based, as well as the reasons why the commission rejected certain evidence or accepted or rejected arguments presented by the parties involved in the case (Part 3.3 of Article 41 of the Law on Protection of Competition).

In conclusion, proving in antimonopoly cases requires deep knowledge, not only of the law but often of highly specialized fields. The introduction of a provision regulating the institution of evidence into the Law on Protection of Competition has undoubtedly had a positive impact on enforcement practice. At the same time, it is evident that requirements for the relevance, authenticity, and sufficiency of evidence must be established, and the burden and standard of proof, as well as the procedure for studying and evaluating evidence, must be defined.

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References

1. Federal Law No. 275-FZ dated October 5, 2015, On Amending the Federal Law On Protection of Competition and Certain Legislative Acts of the Russian Federation.
2. Ruling of the Supreme Court of the Russian Federation No. 305-ES22-5807 dated May 13, 2022, in Case No. A40-55695/2021.
3. Approved by the Presidium of the Supreme Court of the Russian Federation on March 16, 2016.
4. Resolution of the Ninth Arbitration Appellate Court No. 09AP-7097/2012 dated April 18, 2012, in Case No. A40-63445/11-153-559.
5. Svechnikov E. Problems of Evidence in Antimonopoly Cases // Competition and the Market, 2013, No. 2.
6. Clarification of FAS Russia No. 17 On Certain Issues of Competition Status Analysis, approved by the minutes of the Presidium of FAS Russia No. 3 dated April 10, 2019.
7. Ruling of the Supreme Court of the Russian Federation No. 305-ES23-22003 dated November 20, 2023, in Case No. A40-172155/2022.
8. Resolution of the Arbitration Court of the Volga District No. F06-10339/2021 dated October 26, 2021, in Case No. A55-22387/2020.
9. Resolution of the Arbitration Court of the East Siberian District No. F02-2333/2017 dated May 31, 2017, in Case No. A74-12668/2016.
10. Order of FAS Russia No. 574/23 dated August 25, 2023, On Approving Qualification Requirements for Experts Recruited by an Antimonopoly Authority or a Commission for Examining a Case Involving a Violation of Antimonopoly Legislation.
11. Knyazeva I.V., Paderina K.V. The Impact of Expert Opinion on the Examination of Cases Involving Violations of Antimonopoly Legislation: Quantitative and Qualitative Analysis // Law and Economics, 2017, No. 8.
12. Resolution of the Seventh Arbitration Appellate Court No. 07AP-10875/2016 dated December 23, 2016, in Case No. A27-16474/2016.
13. Resolution of the Eleventh Arbitration Appellate Court No. 11AP-11027/2016 dated August 31, 2016, in Case No. A55-5051/2016.
14. Ruling of the Lipetsk UFAS Russia in Case No. 27 dated October 5, 2018, On Denying a Motion in a Case.
15. Ruling of the Supreme Court of the Russian Federation No. 310-KG18-25002 dated October 8, 2020, in Case No. A35-5996/2017.
16. Resolution of the Arbitration Court of the Central District No. F10-804/2023 dated June 23, 2023, in Case No. A83-7497/2021.