Roman Shabrov, partner at BRACE commented for Pharmaceutical Bulletin magazine on the case of an anti-competitive agreement on the Chlorhexedine antiseptic market, identified by the FAS Russia, the resolution of which was appealed by the companies held liable.
As noted Roman Shabrov a multiple unreasonable increase in prices for a disinfectant could potentially indicate a restriction of competition, since the availability of goods is significantly reduced. At the same time, the classification of “Chlorhexidine bigluconate 0.05%” as a disinfectant among non-price regulated goods and its non-inclusion in the Vital and Essential Drugs List, to which the companies referred, is not in itself an obstacle to qualifying an anti-competitive agreement and restricting competition.
The courts have repeatedly noted that the existence of an anticompetitive agreement has not been made dependent on its conclusion in the form of a contract. Such an agreement may be concluded orally and be of a hidden nature. Proving the existence of an anti-competitive agreement is very complex and must be assessed on a case-by-case basis.
To indemnify the companies in this case, it was necessary to prove that the price increase was justified, for example, due to the market situation or significantly increased costs, and there was no agreement between them. However, the arguments and evidence presented by the suppliers were insufficient for the courts.
Of greatest interest, as noted by Roman, is the fact that the FAS proved an anti-competitive agreement, referring to lease relations between companies, the provision of transport services by one of them to another, and the sale of goods to one person (group of persons). If the first two arguments are not unusual, could be an element of economic relations and do not in themselves indicate the existence of an anti-competitive agreement, then the sale of goods to one person may indicate a closer relationship between companies.
Pdf-version of the article “Overestimated. Suppliers of antiseptics were found guilty of a cartel agreement” // PHARMKRUZHOK // Accent. No. 4 (1073). February 15, 2022