Antitrust compliance

Currently, responsibility for violating the requirements of antitrust laws is becoming tougher. In addition to administrative liability, criminal liability measures have been introduced for violating Russian competition law.

However, in connection with the introduction of new legal norms in the field of antimonopoly legislation, the emergence of explanations for their application, as well as the formation of diverse law enforcement practice, compliance with all norms and rules becomes problematic for many business entities. As a result of these reasons, many companies are forced to begin a detailed study of the requirements of antitrust laws only after they face the fact that they are held liable. This significantly reduces the chances of exemption or mitigation of the imposed sanctions, sufficiently increases the cost of legal assistance, and also entails the risks of complete paralysis of economic activities due to the substantial amount of fines imposed or disqualification of key persons of the company. In this regard, it is important to establish a system of preventive measures aimed at meeting the requirements of antitrust laws and preventing its violation, to correctly construct a risk management system for bringing to responsibility for violation of antitrust requirements (antitrust compliance).

It is important to note that antitrust compliance should be directed, first of all, precisely at building a system of preferential measures aimed at observing antitrust laws and preventing its violation. At the same time, minimizing the risks of bringing to responsibility for violation of the norms of antitrust law on the protection of competition is a result of compliance with the law on the protection of competition.

Antitrust compliance is a relatively new concept for the Russian legal system, which is currently not legally enforced.

At the moment, a draft bill, which introduces the definition of this term, is under consideration. According to this draft law, antitrust compliance is a set of legal and organizational measures provided for by an internal act (acts) of an economic entity or other person from among persons belonging to the same group of persons with such economic entity, if such internal acts apply to such economic entity and are to comply with the requirements of antitrust laws and prevent its violation. In the future, it is proposed to consider the organization of the system of internal compliance with the requirements of antimonopoly legislation as a circumstance mitigating administrative responsibility in the event that such a system was implemented prior to the commission of administrative offenses in the field of competition protection. With the official introduction of such legislative amendments, for many organizations, there will be an urgent need for the speedy implementation of a system of internal compliance with the requirements of antitrust laws.

This is indirectly indicated by the fact that such a system is recommended for implementation in government. In particular, in one of the latest explanations of the Federal Antimonopoly Service (Letter N SP/13794/19 dated February 25, 2019 “On clarifying issues related to the implementation of antitrust compliance by the executive authorities of the Russian Federation”), attention is drawn to the fact that antitrust compliance has not been established; nevertheless, its introduction is recommended in order to minimize possible risks.

Moreover, the National Plan for the Development of Competition in the Russian Federation for 2018–2020, approved by Decree of the President of the Russian Federation N 618 of December 21, 2017, is assigned to senior officials of the constituent entities of the Russian Federation to create and organize anti-monopoly compliance activities of the executive authorities of the subjects Russian Federation.

In connection with the active work of the Federal Antimonopoly Service aimed at identifying violators, the practice of conducting work in the area of antimonopoly compliance is relevant and necessary, especially for companies that are active participants in procurement for state and municipal needs.

To reduce the risks of violating antitrust laws, it is recommended:

• preparation of requirements for the procedure for assessing the risks of possible violations that may be committed in the course of business activities;

• passage of procedures for internal control and prevention of violations of Russian antitrust laws;

• familiarization of the company's employees with the implemented documents aimed at reducing the relevant risks;

• training employees and training personnel who are responsible for monitoring compliance by an economic entity, its employees and partners with the requirements of antitrust laws.

At the stage of introducing antitrust compliance, the legal component is extremely important. Such as risk assessment, taking into account the comprehensive verification of the behavior of an economic entity in the market, analysis of judicial practice and legal grounds to minimize the possible liability for violation of competition law.

Legal services

BRACE Law Firm provides the following legal services in the field of antitrust compliance:

  1. legal analysis of the practice of interaction of the organization with employees, contractors, state and municipal authorities in terms of compliance with the Russian antitrust laws;
  2. legal expertise of the internal documents of the organization, contracts, commercial and other policies for compliance with antitrust laws;
  3. analysis and development of recommendations in order to comply with the requirements of antimonopoly legislation when conducting and participating in government and corporate procurement, as well as other tenders;
  4. legal assessment of the risks of violating anti-monopoly legislation, bringing to responsibility for violating competition law and developing recommendations for managing and minimizing these risks;
  5. providing recommendations on building a system of measures aimed at observing anti-monopoly legislation and preventing its violation;
  6. preparing local acts and internal policies necessary for the implementation of the internal control system and the prevention of violations of antitrust laws;
  7. representing the interests of an economic entity in the Federal Antimonopoly Service and its territorial bodies in the event of bringing the company to justice.

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