13 April 2025

Monopolistically High and Monopolistically Low Prices: Regulation and Liability in Russia

April 13, 2025

BRACE Law Firm ©

In most cases, except for those provided for by Russian legislation, economic entities are not restricted in their right to form prices for manufactured and sold goods, works, and services at their own discretion. At the same time, the Civil Code of the Russian Federation (the "Civil Code") establishes a principle prohibiting the use of civil rights for the purpose of restricting competition, as well as the abuse of a dominant market position, which includes, among other things, the establishment of monopolistically high and monopolistically low prices.

Developing this principle to ensure the unity of the economic space, the free movement of goods, the freedom of economic activity in the Russian Federation, the protection of competition, and the creation of conditions for the effective functioning of commodity markets, the government adopted Federal Law No. 135-FZ dated July 26, 2006, On Protection of Competition (the "Law on Protection of Competition").

Monopolistically High Price

According to Article 6 of the Law on Protection of Competition, a monopolistically high price of a product is a price established by an economic entity occupying a dominant position if this price exceeds the sum of expenses and profit necessary for the production and sale of such a product and the price formed under competitive conditions in a commodity market comparable in terms of the composition of buyers or sellers of the product, terms of product circulation, terms of access to the commodity market, and state regulation, including taxation and customs-tariff regulation.

The grounds for considering Case No. A50-17553/2023 was the adoption of a decision by the Antimonopoly Authority regarding a company recognized as occupying a dominant position in the sale of aerated concrete blocks within the borders of the Perm Territory. The actions of this company aimed to establish and maintain a monopolistically high price for aerated concrete blocks in the Perm Territory, which led to the infringement of the interests of buyers. The Antimonopoly Authority ordered the company to "stop the abuse of a dominant position and take actions aimed at ensuring competition in the primary wholesale market of aerated concrete blocks within the borders of the Perm Territory by issuing an internal local act on the pricing procedure and trade and marketing policy, including provisions providing for the inadmissibility of establishing prices for aerated concrete blocks that exceed the sum of expenses and profit necessary for the production and sale of such a product, as well as infringing on the interests of consumers in the Perm Territory". [1] The company appealed to the court to challenge the decision and order of the Antimonopoly Authority, but courts of all instances established that the decision and order were legal and issued rightfully.

A price established (applied) by an economic entity dominant in the market may be recognized as inadmissible (monopolistically high) if it exceeds the value of the goods ensuring the recovery of necessary costs and the receipt of reasonable profit, and the price formed in comparable competitive commodity markets, if any. When assessing the necessity of expenses to ensure the activities of an economic entity, their economic justification may be taken into account, including the orientation of expenses toward meeting the production needs of the entity, the correspondence of the amount of costs to the usual value of the relevant benefits, and the market conditions in which the costs were incurred. For example, costs that are not related to the production and sale of a product but are accounted for by a dominant market entity when forming the price of the product may be recognized as economically unjustified. Costs whose increase is due to a rise in prices in the market for raw materials from which the product is manufactured may be recognized as economically justified. [2]

In Case No. A08-6895/2021, the Antimonopoly Authority issued a decision recognizing a company as abusing its dominant position by establishing and applying monopolistically high prices for services for the technical maintenance of in-house/in-apartment gas equipment. The Antimonopoly Authority issued an order instructing the company to form prices for services based on the expenses and profit necessary to provide the service. During the consideration of the case, the courts pointed out that "the mere increase by an economic entity occupying a dominant position of a previously established price for a product in a certain period of time cannot be considered as a violation of antimonopoly legislation, and the price of the product as monopolistically high". [3] The courts concluded that the price for services "does not exceed the expenses necessary for the sale of such services and the receipt of reasonable profit and is not excessive, and recognized the violation by the company of the pricing procedure as unproven, in connection with which they recognized the challenged non-normative acts as invalid". [4]

A monopolistically high price may be established by increasing a previously established price of a product if the following conditions are met in aggregate:

the expenses necessary for the production and sale of the product remained unchanged, or their change does not correspond to the change in the price of the product;
the composition of sellers or buyers of the product remained unchanged, or the change in the composition of sellers or buyers of the product is insignificant;
the terms of product circulation in the commodity market, including those determined by state regulation measures, including taxation and tariff regulation, remained unchanged, or their change is disproportionate to the change in the price of the product.

Also, a monopolistically high price may be established by maintaining or failing to decrease a previously established price of a product if the following conditions are met in aggregate:

the expenses necessary for the production and sale of the product significantly decreased;
the composition of sellers or buyers of the product determines the possibility of changing the price of the product toward a decrease;
the terms of product circulation in the commodity market, including those determined by state regulation measures, including taxation and tariff regulation, ensure the possibility of changing the price of the product toward a decrease.

Monopolistically Low Price

In accordance with Article 7 of the Law on Protection of Competition, a monopolistically low price of a product is a price established by an economic entity occupying a dominant position if this price is lower than the sum of expenses and profit necessary for the production and sale of such a product and lower than the price formed under competitive conditions in a comparable commodity market.

It should be noted that there is currently no judicial practice or practice of antimonopoly authorities recognizing prices as monopolistically low, but there is practice regarding the absence of signs indicating the establishment of a monopolistically low price. Such practice will be discussed in the next section.

A monopolistically low price may be established by decreasing a previously established price of a product if the following conditions are met in aggregate:

the expenses necessary for the production and sale of the product remained unchanged, or their change does not correspond to the change in the price of the product;
the composition of sellers or buyers of the product remained unchanged, or the change in the composition of sellers or buyers of the product is insignificant;
the terms of product circulation in the commodity market, including those determined by state regulation measures, including taxation and tariff regulation, remained unchanged, or their change is disproportionate to the change in the price of the product.

Also, a monopolistically low price may be established by maintaining or failing to increase a previously established price of a product if the following conditions are met in aggregate:

the expenses necessary for the production and sale of the product significantly increased;
the composition of sellers or buyers of the product determines the possibility of changing the price of the product toward an increase;
the terms of product circulation in the commodity market, including those determined by state regulation measures, including taxation and tariff regulation, ensure the possibility of changing the price of the product toward an increase.

Determination of Monopolistically High or Low Prices in the Eurasian Economic Union

At the level of the Eurasian Economic Union (the "EAEU"), a Methodology for Determining Monopolistically High (Low) Prices (the "Methodology") has been developed.[5] This Methodology applies when monitoring compliance with general competition rules in cross-border markets in the territories of two or more EAEU member states by economic entities occupying a dominant position in cross-border markets.

The Methodology was developed in accordance with paragraph 11 of the Protocol on General Principles and Rules of Competition, which is Annex No. 19 to the Treaty on the EAEU dated May 29, 2014.

Under the Methodology, a monopolistically high price is understood as a price established by an economic entity (market subject) occupying a dominant position in the presence of the following conditions in aggregate (paragraph 3 of the Methodology):

if this price exceeds the sum of expenses and profit necessary for the production and sale of such a product;
if this price exceeds the price formed under competitive conditions in a commodity market comparable in terms of the composition of buyers or sellers of the product, terms of product circulation, terms of access to the commodity market, and state regulation, including taxation and customs-tariff regulation, if such a market exists within the EAEU territory or outside its borders.

A price established by a subject of a natural monopoly within the tariff for such a product, determined in accordance with the legislation of the EAEU member states, cannot be recognized as monopolistically high (paragraph 4 of the Methodology).

A monopolistically low price is understood as a price established by an economic entity (market subject) occupying a dominant position in the presence of the following conditions in aggregate (paragraph 5 of the Methodology):

if this price is lower than the sum of actual or necessary production costs;
if this price is lower than the price formed under competitive conditions in a comparable commodity market, if such a market exists within the EAEU territory or outside its borders.

A price cannot be recognized as monopolistically low if its establishment did not lead or could not lead to the restriction of competition due to a reduction in the number of economic entities (market subjects) not belonging to the same group of persons as the sellers or buyers of the product in the relevant commodity market (paragraph 6 of the Methodology).

To determine the signs of establishing a monopolistically high or low price, an analysis is applied (paragraph 9 of the Methodology):

the dynamics of various types of prices (weighted average, for various types of buyers, etc.);
the cost of production of the product and the structure of commercial expenses for its sale (including the justification of all types of costs), as well as cost dynamics (including a comparison of cost growth rates (individual cost elements));
the dynamics of investments in non-financial assets;
the dynamics of various types of gross profit and the directions of its distribution (including the payment of dividends and investment activities);
the profitability of production, sales, and assets;
the dynamics of production volumes (sales) of the product.

To conduct the analysis, the following sources specified in paragraph 10 of the Methodology are used as initial information:

official statistical information;
information received from tax, customs, and other state authorities, and central (national) banks of EAEU member states;
information received from individuals and legal entities (including information provided by buyers of a specific product), including through their sample survey, as well as information provided by sellers of a specific product, and data from marketing and sociological research;
results of economic and other expert examinations, conclusions of specialized organizations, as well as specialists and experts;
data from publications of executive authorities and independent information centers and services;
information from consumer associations and producer associations;
mass media reports;
materials of the Eurasian Economic Commission and information from the antimonopoly authorities of states that are not EAEU members;
state standards, technical specifications, and other regulations;
appeals from individuals and legal entities to the Eurasian Economic Commission.

To determine the comparability of commodity markets, the presence of the following conditions in aggregate is checked (paragraph 11 of the Methodology):

the compared commodity markets belong to the same type of markets depending on the specifics of the economic activity of sellers and buyers (wholesale, retail);
there are no significant differences in the composition of buyers and (or) sellers of the product (comparable concentration levels and commodity market volume, determined in accordance with the Methodology for Assessing the State of Competition);
there are no significant differences in the general terms of product circulation in the market (comparable economic-geographical and natural-climatic conditions);
there are no significant differences in the terms of access to commodity markets (for example, a comparable level of initial investments for carrying out activities, a comparable duration of the financial cycle, a comparable minimum production level, the absence of preferences for individual producers, comparable administrative barriers, etc.);
there are no significant differences in the degree of influence of state regulation measures, including taxation and customs-tariff regulation, on the price level of the product.

In Which Cases is a Price Not Recognized as Monopolistically High or Low?

Articles 6 and 7 of the Law on Protection of Competition provide that a price of a product resulting from innovative activity — that is, activity leading to the creation of a new non-interchangeable product or a new interchangeable product while reducing production costs and (or) improving its quality — is not recognized as monopolistically high (low) even if the conditions for recognizing it as such are met.

The price of a product is not recognized as monopolistically high if it is established by a subject of a natural monopoly within the tariff for such a product, determined in accordance with the legislation of the Russian Federation, and also in the event of not exceeding the price formed under competitive conditions in a comparable commodity market.

In addition, the price of a product is not recognized as monopolistically high if it is established on an exchange while simultaneously meeting the following conditions:

the volume of the product sold on the exchange is not less than the value established by the federal antimonopoly authority and the federal executive authority exercising legal regulation of the sphere of activity to which the production of the relevant product belongs. For example, the value of petroleum products sold on the exchange, as well as individual categories of products produced from oil and gas, for motor gasoline is at least 15%, of which not more than 1% may account for the volume of motor gasoline sold under supply contracts concluded at exchange auctions in fulfillment of obligations under deliverable futures contracts in accordance with the rules for organized trading; [6]
transactions are concluded by the economic entity during exchange auctions that meet the requirements determined by the federal antimonopoly authority and the federal executive authority exercising legal regulation of the sphere of activity to which the production of the relevant product belongs, including requirements for the minimum number of participants in exchange auctions during a trading session; [7]
the economic entity, accredited and (or) participating in the auctions (including by submitting applications for participation in auctions to a broker or brokers), provides the exchange with a list of affiliates in the manner established by the federal antimonopoly authority; [8]
the actions of the economic entity do not relate to market manipulation. Actions related to market manipulation are defined by Article 5 of Federal Law No. 224-FZ dated July 27, 2010, On Countering the Unlawful Use of Inside Information and Market Manipulation and on Amending Certain Legislative Acts of the Russian Federation. For example, the repeated completion during a trading day on organized auctions, at the expense or in the interests of one person, of transactions for the purpose of misleading regarding the price of a financial instrument, foreign currency, and (or) product, as a result of which the price of the financial instrument, foreign currency, and (or) product was maintained at a level significantly different from the level that would have been formed without such transactions;
the sale of the product on the exchange is carried out regularly with an even distribution of the volume of the product by trading sessions during a calendar month;
the economic entity registers over-the-counter transactions for the supply of goods circulating in such a commodity market in the cases and in the manner established by the Government; [9]
the minimum size of an exchange lot does not prevent access to the relevant commodity market;
the sale of the product by the economic entity is carried out on an exchange that meets the requirements of the legislation on organized trading, including requirements for maintaining the confidentiality of information about persons who have submitted relevant applications for participation in auctions, including by submitting such applications to a broker or brokers.

A price of a product established taking into account the specifics of forming the starting price for products when sold on an exchange, agreed upon with the antimonopoly authority, is not recognized as monopolistically high.

When determining the monopolistically high price of a product, exchange and over-the-counter price indicators established in world markets for a similar product are taken into account.

The price of a product is not recognized as monopolistically low if:

it is established by a subject of a natural monopoly within the tariff for such a product;
it is not lower than the price formed under competitive conditions in a comparable commodity market;
its establishment by the seller of the product did not entail and could not entail the restriction of competition due to a reduction in the number of economic entities not belonging to the same group of persons as the sellers or buyers of the product in the relevant commodity market.

Thus, when considering applicant's complaint, the Antimonopoly Authority decided to refuse to initiate a case on a violation of antimonopoly legislation "due to the absence of a prohibition established by current legislation on the sale of primary economy-class housing at a price below the cost per square meter in apartment buildings established by other developers", indicating that the developer's actions lacked signs of a violation of antimonopoly legislation. Disagreeing with this decision of the Antimonopoly Authority, a company appealed to the arbitration court with a corresponding statement within the framework of Case No. A76-14226/2016. [10] The courts established that "based on the results of the analysis and assessment of the state of the competitive environment in the primary economy-class housing market, it was established that there are no active entities occupying a dominant position in the primary economy-class housing market on the territory of Chelyabinsk. Consequently, the primary economy-class housing market in the specified territory is competitive, and the price is not monopolistically low". [11]

Methods for Determining Monopolistically High (Low) Prices

Based on these provisions, two methods are used in antimonopoly legislation to determine the monopolistically high or monopolistically low price of a product:

the cost-based method;
the comparable markets method. [12]

The assessment of the price of a product to determine whether it is monopolistically high or low must begin with establishing the presence of comparable competitive markets (a comparable competitive market) and establishing the price of the product in such comparable markets. At the same time, it is necessary to consider such a market that will be comparable in terms of the composition of buyers or sellers of the product, terms of product circulation, terms of access to the commodity market, and state regulation, including taxation and customs-tariff regulation. Such a commodity market must be in a state of competition.

For the purpose of objectivity in obtaining data when comparing prices in comparable markets, the presence or absence of different market regulation regimes directly affecting the price level should be established. Such regimes can include, for example, the presence or absence of product price subsidies, tax incentives, and other conditions affecting product circulation.

Certain differences in the regulation of the activities of economic entities in the commodity markets under consideration (regulation of labor relations, tax regime) may not be taken into account when comparing price levels in markets with developed competition in relation to a non-competitive market if they do not significantly influence the pricing process.

A market is considered comparable if it is similar to the market of violation according to four criteria:

by the composition of buyers or sellers of the product;
terms of product circulation;
terms of access to the commodity market;
state regulation, including taxation and customs-tariff regulation, in the presence of such a market within the territory of the Russian Federation or outside its borders. [13]

By law, the comparable markets method is a priority. The use of the cost-based method is possible only if a comparable market is absent. In each case, the Antimonopoly Authority is obliged to first check for the presence of comparable markets and, only in their absence, conduct a price analysis using the cost-based method.

At the same time, in practice, price analysis using the comparable markets method occurs quite rarely, as in fact, for its implementation, the Antimonopoly Authority must identify two subjects/districts/municipalities in Russia that are similar in all four criteria mentioned above. And while state regulation of markets is often similar, other criteria far from always coincide. [14]

Within the framework of the consideration of Case No. 058/01/10-49/2021 regarding a violation of antimonopoly legislation, an analysis of the state of competition in the relevant commodity market was conducted, namely, regular passenger and baggage transportation services by high-capacity buses at an unregulated tariff on municipal routes. The geographical boundaries of the market are the municipality of the city of Penza. The cities of Orenburg, Stavropol, and Kursk were considered as comparable commodity markets. The commission of the Penza Office of the Federal Antimonopoly Authority (the "Penza OFAS") came to a conclusion about the "economically unjustified amount of the tariff established by the respondents for the service of regular passenger and baggage transportation by high-capacity buses at unregulated tariffs in urban traffic on the territory of Penza. In this regard, the established cost of the tariff for the specified service is monopolistically high since it exceeds costs and profit". [15]

Given the above, the actions of the respondents to establish a monopolistically high price for regular passenger and baggage transportation services by high-capacity buses, in the opinion of the OFAS, "result in an infringement of the interests of an indefinite circle of consumers, since the latter are forced to pay for travel in high-capacity buses at an economically unjustified, excessive price". [16]

In Case No. A40-75556/2017, decisions of FAS Russia were overturned because the Antimonopoly Authority did not conduct a proper analysis of comparable markets for transshipment services in seaports. In recognizing the challenged decision as illegal, the courts proceeded from the fact that FAS Russia "did not conduct a proper analysis of comparable markets and also refused to compare prices formed in comparable markets with the applicant's prices". [17]

The courts also noted that "the challenged decision does not contain specific examples of differences in the volumes of services provided and production capacities, and the Antimonopoly Authority did not indicate why these differences, if they exist at all, are ambiguous, representing differences in the terms of product circulation that are not comparable with the port of Novorossiysk". [18]

It should be noted that antimonopoly authorities often reduce the application of the comparable markets method to a brief statement that no comparable markets were identified as a result of the analysis. Moreover, this happens regardless of whether the case concerns a matter where the absence of a comparable market in a state of competition can generally be assumed, [19] or a market whose analogues can be found, for example, the analysis conducted by the Altai Territory OFAS of commodity markets comparable to the market for the delivery of liquefied petroleum gas in cylinders for the household needs of the population of the Altai Territory showed that comparable commodity markets are absent. [20]

In Case No. 056/01/10-994/2021, the commission of the Orenburg OFAS concluded that it was impossible to determine comparable commodity markets because "beach infrastructure services within the borders of a resort of local importance possess individually determined characteristics in the absence of the possibility of obtaining these services except from the respondent". [21] This also applies to services for the installation and replacement of gas equipment [22] or services for medical examination by a psychiatrist-narcologist. [23]

The Law on Protection of Competition also allows for the search for comparable markets outside Russia.

Since antimonopoly authorities mainly use the cost-based method to prove a monopolistically high or low price, let us dwell on it in more detail.

When using the cost-based method, the following are subject to analysis:

expenses necessary for the production and sale of the product;
the profit of the economic entity from the sale of the product;
the price of the product;
data on the excess of actual profitability over normative profitability indicators (in the case of considering the price as a monopolistically low price — data on the understatement of actual profitability over normative profitability indicators) for those markets where the level of profitability is established normatively. [24]

Within the framework of the investigation of the circumstances of establishing a monopolistically high or monopolistically low price for a product (work, service), the Antimonopoly Authority may assess the justification of the expenses included in the price of the product (work, service), as well as the level of income of the relevant economic entity. An organization is obliged to economically justify the amount of the established price. In the absence of such justification, prices may be qualified by the Antimonopoly Authority as economically unjustified.

For example, when considering Case No. 003/01/10-243/2023 by the Buryat OFAS on December 29, 2023, the commission established that "taking into account several methods for calculating the tariff presented by the respondent with different results and different degrees of correctness, the establishment of the cost of the infrastructure access service for placing telecommunication networks is carried out without taking into account the actually incurred expenses for providing the service for placing fiber-optic communication lines on overhead power line facilities, confirmed by primary documentation". [25]

At the same time, by the decision of the Arbitration Court of the Republic of Buryatia dated November 26, 2024, in Case No. A10-588/2024, the specified conclusion was recognized as unfounded. Thus, in accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation, reasonable and documented costs, and in cases provided for in Article 265 of the Tax Code, losses incurred by the taxpayer are recognized as expenses for the purposes of profit taxation. Expenses are recognized in the reporting period in which they took place. The court noted that "when providing the fiber-optic communication line placement service, costs are subject to determination in correlation with the income received. That is, in this case, the amount of actually incurred costs depended, among other things, on the actual number of poles possible for placing fiber-optic communication lines per month". [26]

On January 10, 2017, the commission of the Trans-Baikal OFAS in Case No. 02-05-29-2016 established that "in the calculation of Calculation No. 2, the initial data do not correspond to the initial data adopted in the calculation of Calculation No. 1, as well as to the data on costs in the breakdown of cost items included in the cost price, including expenses related to the activity for the destruction of medicinal products. The economic justification for the tariff increase is not documented. The calculation of the cost of services for the destruction of medicinal products is not confirmed by the materials submitted (breakdown of cost items included in the cost price for the service for the destruction of medicinal products)". [27]

As for the rate of profit, there is no state regulation of it, as a result of which this indicator is evaluative. In practical activity, to determine it, antimonopoly authorities are guided by the industry average profitability value. [28]

In accordance with the letter of FAS Russia No. ATs/54346/13 dated December 31, 2013, antimonopoly authorities, when establishing monopolistically high prices, analyze data on the excess of product profitability over industry average profitability indicators.

Industry average profitability data are published annually on the FNS Russia website. Industry average profitability indicators vary significantly depending on the type of economic activity. For example, in 2023, for the type of activity "hotel and public catering activities", the indicator was 10.7%, and for "tobacco product manufacturing" — 57.7%.[29]

Responsibility for Establishing Monopolistically High (Low) Prices

In accordance with Article 10 of the Law on Protection of Competition, actions (omissions) of an economic entity occupying a dominant position are prohibited, the result of which are or may be the prevention, restriction, elimination of competition and (or) infringement of the interests of other persons (economic entities) in the sphere of entrepreneurial activity or an indefinite circle of consumers, including the establishment, maintenance of a monopolistically high or monopolistically low price of a product.

Administrative liability is provided for the abuse of a dominant position in the commodity market under Article 14.31 of the Code of Administrative Offenses of the Russian Federation (the "CAO RF").

Liability under Part 1 of Article 14.31 of the CAO RF arises if the abuse led or could lead to the infringement of the interests of other persons and, at the same time, the result of such actions is not and cannot be the prevention, restriction, or elimination of competition. The penalty is provided in the form of an administrative fine on officials in the amount of 15,000 to 20,000 rubles, and on legal entities — from 300,000 to 1 million rubles.

Part 2 of Article 14.31 of the CAO RF provides for punishment for the commission by an economic entity of actions recognized as an abuse of a dominant position if the result of such actions is or may be the prevention, restriction, or elimination of competition, or the commission by a subject of a natural monopoly of actions recognized as an abuse of a dominant position, with punishment in the form of an administrative fine on officials in the amount of 20,000 to 50,000 rubles or disqualification for a period up to 3 years, and on legal entities:

from one-hundredth to fifteen-hundredths of the amount of the revenue of the offender from the sale of the product (work, service) in the market where the administrative offense was committed; or
the amount of the offender's expenses for the acquisition of the product (work, service) in the market where the administrative offense was committed, but not more than one-fiftieth of the aggregate amount of the revenue of the offender from the sale of all goods (works, services) and not less than 100,000 rubles.

In the event that the amount of the offender's revenue from the sale of the product (work, service) or the amount of the offender's expenses for the acquisition of the product (work, service) exceeds 75% of the aggregate amount of the offender's revenue from the sale of all goods (works, services), or the administrative offense was committed in the market for goods (works, services) whose sale is carried out at prices (tariffs) regulated in accordance with the legislation of the Russian Federation, the fine on legal entities is in the following amount:

in the amount of 3/1000 to 3/100 of the amount of the offender's revenue from the sale of the product (work, service); or
the amount of the offender's expenses for the acquisition of the product (work, service), but not more than 1/50 of the aggregate amount of the offender's revenue from the sale of all goods (works, services) and not less than 100,000 rubles.

Revenue from the sale of goods (works, services) is determined in accordance with Articles 248 ("Procedure for Determining Income. Classification of Income") and 249 ("Income from Sale") of the Tax Code of the Russian Federation, and expenses for the acquisition of goods (works, services) are determined in accordance with Articles 254 ("Material Expenses") and 268 ("Specifics of Determining Expenses upon Sale of Goods and (or) Property Rights") of the Tax Code of the Russian Federation.

When assigning an administrative penalty for committing an administrative offense in relation to a legal entity, circumstances mitigating administrative liability provided for in paragraphs 2–7 of Part 1 of Article 4.2 of the CAO RF are taken into account:

voluntary termination of unlawful behavior by the person who committed the administrative offense;
voluntary notification by the person who committed the administrative offense to the body authorized to carry out proceedings in the case of an administrative offense about the committed administrative offense;
assistance by the person who committed the administrative offense to the body authorized to carry out proceedings in the case of an administrative offense in establishing the circumstances to be established in the case of an administrative offense;
prevention by the person who committed the administrative offense of the harmful consequences of the administrative offense;
voluntary compensation by the person who committed the administrative offense for the damage caused or voluntary elimination of the harm caused;
voluntary execution, before the issuance of a decision in the case of an administrative offense, by the person who committed the administrative offense of an order to eliminate the committed violation issued to them by the body exercising state control (supervision) and municipal control.

When assigning an administrative penalty in relation to a legal entity, circumstances aggravating administrative liability provided for in paragraphs 1 and 2 of Part 1 of Article 4.3 of the CAO RF are taken into account:

continuation of unlawful behavior, despite the demand of authorized persons to stop it;
repeated commission of a similar administrative offense — that is, the commission of an administrative offense during the period when the person is considered subjected to administrative punishment in accordance with Article 4.6 of the CAO RF for the commission of a similar administrative offense.

The following circumstances aggravating administrative liability are also taken into account:

commission of a continuing administrative offense whose duration exceeds 1 year;
causing, as a result of the commission of an administrative offense, damage to citizens, organizations, or the state in an amount of more than 1 million rubles, or the extraction, as a result of the commission of an administrative offense, of income in an amount of more than 5 million rubles;
commission of an administrative offense provided for by Part 7 of Article 19.8 of the CAO RF if the person has already been subjected to an administrative penalty for this administrative offense for which the statute of limitations has not expired. This circumstance can only be applied to the administrative offense within the case of which information necessary for calculating the amount of the administrative fine was requested.

In the absence of circumstances mitigating and aggravating administrative liability, an administrative fine is imposed on a legal entity in the amount of the minimum amount of the administrative fine provided for the commission of this administrative offense and half the difference between the maximum and minimum amounts of the administrative fine provided for the commission of this administrative offense.

If a legal entity that committed an administrative offense has prevented the harmful consequences of the administrative offense or voluntarily compensated for the damage caused or voluntarily eliminated the harm caused, then an administrative fine is imposed on the legal entity in the amount of the minimum amount of the administrative fine provided for the commission of this administrative offense. In the presence of circumstances mitigating administrative liability, except for the circumstances discussed above, the amount of the administrative fine imposed on the legal entity is subject to reduction for each such circumstance by one-eighth of the difference between the maximum and minimum amounts of the administrative fine provided for the commission of this administrative offense.

In the presence of circumstances aggravating administrative liability, the amount of the administrative fine imposed on the legal entity is subject to increase for each such circumstance by one-eighth of the difference between the maximum amount and the minimum amount of the administrative fine provided for the commission of the administrative offense.

Thus, in Case No. A53-15563/2023, judicial instances agreed with the position of the Antimonopoly Authority, which recognized "as a circumstance mitigating administrative liability, the voluntary execution by the company, before the issuance of the decision in the case of an administrative offense, of an order to eliminate the committed violation, and as a circumstance aggravating administrative liability, the commission by the company of a continuing administrative offense, the duration of which is at least a year". At the same time, they established additional circumstances mitigating liability and reduced the amount of the fine imposed on the company, indicating that "the penalty assigned to the company by the challenged decision does not correspond to the severity of the violation committed and the goals of applying punishment". [30]

When considering Case No. A43-38640/2022 on the reversal of the decision of the Antimonopoly Authority to bring a company (a medical organization) to liability under Part 1 of Article 14.31 of the CAO RF for establishing monopolistically high prices in the market of paid medical services for computed tomography of the thoracic cavity (chest), the courts noted that the administrative body "incorrectly determined the geographical and product boundaries of the commodity market, the composition of economic entities active in it, and accordingly, the dominant position of the company in the considered commodity market for the provision of computed tomography services for the thoracic cavity (chest) was not proven by it. This circumstance excludes the existence of the event of the administrative offense under consideration in the act of the company". [31]

From the reviewed article, it follows that the legal regulation of establishing a monopolistically high (low) price contains only a general description of the approaches used in determining such a price. At the same time, law enforcement practice shows that such a description is often insufficient to create legal certainty. Different approaches to assessing established prices by antimonopoly authorities and courts complicate the activities of companies in developing a pricing policy that would comply with antimonopoly legislation.

At the same time, the reviewed clarifications of FAS Russia, as well as the analysis of practice, allow for the clarification of certain issues in the consideration of cases on the establishment of monopolistically high prices and reduce the risk of bringing economic entities to administrative liability.

_________________________

References

Resolution of the Arbitration Court of the Ural District dated October 23, 2024, No. A50-17553/2023.
Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 4, 2021, No. 2, On Certain Issues Arising in Connection with the Application of Antimonopoly Legislation by Courts.
Resolution of the Arbitration Court of the Central District dated March 9, 2023, in Case No. A08-6895/2021.
Ibid.
Decision of the Council of the Eurasian Economic Commission dated December 17, 2012, No. 117, On the Methodology for Determining Monopolistically High (Low) Prices.
Order of FAS Russia No. 1029/23, Ministry of Energy of Russia No. 1193 dated December 21, 2023, On Approval of the Amount of the Volume of Petroleum Products Sold on the Exchange, as well as Individual Categories of Goods Produced from Oil and Gas, and Requirements for Exchange Auctions.
Ibid.
Order of FAS Russia dated June 26, 2012, No. 409, On Approval of the Order for Providing the Exchange with a List of Affiliates by an Economic Entity Occupying a Dominant Position in the Relevant Commodity Market, Accredited and (or) Participating in Auctions (including by submitting applications for participation in auctions to a broker or brokers).
Decree of the Government of the Russian Federation dated May 31, 2023, No. 892, On Approval of the Regulation on Providing Information on Contracts Concluded by Parties Not at Organized Auctions, Obligations under which Provide for the Transfer of Ownership of Goods Admitted to Organized Auctions, as well as on Keeping a Register of Such Contracts and Providing Information from the Specified Register and Recognizing Certain Acts of the Government of the Russian Federation as No Longer in Force.
Resolution of the Arbitration Court of the Ural District dated March 30, 2017, in Case No. A76-14226/2016.
Ibid.
Clarification No. 1 of the Presidium of FAS Russia, Determination of Monopolistically High and Monopolistically Low Prices of a Product, approved by the Protocol of the Presidium of FAS Russia dated February 10, 2016, No. 2.
Taradankina A.A., Lisichenkova M.A. Methods of Proving Monopolistically High Prices in the Practice of Antimonopoly Authorities. Zakon Journal, 2024, No. 7.
Ibid.
Decision of the Penza OFAS dated June 25, 2021, in Case No. 058/01/10-49/2021.
Ibid.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated December 26, 2018, in Case No. A40-75556/2017.
Ibid.
Muzyka M.V. Comparable Markets Method: Current Approaches of Law Enforcement Practice. Zakon Journal, 2024, No. 7.
Decision of the Altai Territory OFAS dated August 24, 2021, No. 022/01/10-350/2021.
Decision of the Orenburg OFAS dated February 8, 2023, in Case No. 056/01/10-994/2021.
Decision of the Komi OFAS dated January 9, 2020, N 02-01/51 in Case No. 011/01/10-385/2019.
Resolution of the Tyva OFAS dated May 16, 2019, in Case No. A20-14.31/19.
Clarification No. 1 of the Presidium of FAS Russia, Determination of Monopolistically High and Monopolistically Low Prices of a Product.
Decision of the Buryat OFAS dated December 29, 2023, in Case No. 003/01/10-243/2023.
Decision of the Arbitration Court of the Republic of Buryatia dated November 26, 2024, Resolution of the Fourth Arbitration Court of Appeal dated February 25, 2025, in Case No. A10-588/2024.
Decision of the Trans-Baikal OFAS dated January 10, 2017, N 02-05-29-2016.
Decisions of FAS Russia dated December 27, 2021, in Case No. 11/01/10-20/2021; Novosibirsk OFAS dated November 11, 2022, in Case No. 054/01/10-86/2022; Sakhalin OFAS dated August 19, 2022, in Case No. 065/01/10-95/2022.
Information from the FNS Russia website.
Resolution of the Arbitration Court of the North Caucasus District dated May 20, 2024, N F08-2551/2024 in Case No. A53-15563/2023.
Resolution of the Arbitration Court of the Volga-Vyatka District dated September 20, 2023, in Case No. A43-38640/2022.