Legal services (legal assistance) for representation in court in cartel cases (cartel disputes)
Federal Law No. 135-FZ of July 26, 2006 “On Protection of Competition” establishes that a cartel is an agreement between competing economic entities in the same product market that leads or may lead to:
- establishment or maintenance of prices (tariffs), discounts, surcharges (additional payments) and (or) margins;
- increase, decrease or maintenance of prices at the auction; dividing the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers);
- reduction or cessation of production of goods;
- refusal to conclude contracts with certain sellers or buyers (customers).
Currently, the current legislation provides for serious penalties for the conclusion of cartel agreements. In particular, art. 14.32 of the Code of Administrative Offenses of the Russian Federation provides for the imposition of an administrative fine on officials and legal entities. Also Art. 178 of the Criminal Code of the Russian Federation provides for a fine in the amount of or forced labor with deprivation of the right to occupy certain positions or engage in certain activities. Criminal liability arises if the committed act caused major damage to citizens, organizations or the state, or resulted in the extraction of income on a large scale.
When proving a cartel collusion, the control body examines both the documents of potential cartel participants, official correspondence, telephone conversations can be tapped, and information is collected about the participation of legal entities in the same auction, behavioral features at the auction, the identity of the documents being prepared as part of the application to participate in purchases.
In judicial practice, there is no uniform approach to resolving cartel disputes. As part of the consideration of this category of cases, the courts can take the side of the control body, as well as the side of persons identified as members of the cartel. As part of the resolution of disputes, it is necessary to provide undeniable evidence of the absence of price fixing or other grounds on which exemption from liability is possible.
Procedure for consideration of cartel disputes
Persons recognized as a cartel based on the results of an inspection by the FAS Russia have the right to appeal against the decision of the control body out of court within 30 days from the date of its adoption.
In practice, the appeal of such decisions in the administrative procedure may not be effective. Failure to comply with the administrative procedure, or an administrative appeal against the decision made, does not prevent the judicial appeal of the decision to recognize organizations as a cartel.
Cases on cartel disputes are considered by the arbitration court in accordance with Chapter 24 of the Arbitration Procedure Code of the Russian Federation.