Legal support of the coordination of transactions with the antimonopoly authority
A number of categories of transactions carried out by business entities in the course of their activities require prior coordination with the FAS Russia in order to exercise state control over economic concentration, as well as for other reasons.
Economic concentration is a transaction and other actions, the implementation of which has an impact on the state of competition.
Types of such transactions are listed in Chapter 7 of Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" (hereinafter - the Law on Protection of Competition). These include:
- merger of commercial and financial companies;
- transactions with shares and shares of the company's participants;
- transactions with the property of the company;
- creation and reorganization of commercial organizations;
- conclusion of agreements on joint activities between economic competitors;
- other financial transactions of companies. /
FAS Russia exercises two types of control over economic concentration:
- Preliminary. It is carried out before the execution by business entities of transactions and actions. The antimonopoly body considers applications for concluding transactions from economic concentration entities. The consent of the antimonopoly body is a prerequisite for the commission of such actions and transactions. The decision on the results of consideration of the application is made by the antimonopoly authority within 30 days from the date of its receipt. This period may be extended, but not more than for 60 days, if there is a need for additional consideration of the application or for obtaining additional information for the decision, and if it is determined that the actions stated in the petition may lead to restriction of competition.
- Subsequent. Applies to a group of persons after the performance of controlled actions and transactions. The antimonopoly authority considers the information received from economic concentration entities about their actions and transactions. Notification of the committed actions and transactions should be sent to the antimonopoly authority no later than 45 days after the date of such transactions or actions. Based on the results of the consideration of the notification, the antimonopoly authority may issue an order for the implementation of actions aimed at ensuring competition, if transactions or other actions have or may lead to restriction of competition. Instead of filing a notice, it is possible to apply to the antimonopoly authority with a request for prior consent for the implementation of actions and the completion of transactions.
Article 34 of the Law on Protection of Competition establishes the consequences of violation of the procedure for obtaining prior consent for the implementation of transactions and actions, as well as the procedure for submitting notifications to the antimonopoly authority:
- liquidation or reorganization in the form of separation or separation of a commercial organization created without the prior consent of the antimonopoly authority, as well as in case of non-elimination of violations specified in the order of the antimonopoly authority;
- recognition of an invalid transaction with shares (interests), property of commercial organizations, rights in respect of commercial organizations, committed without the prior consent of the antimonopoly authority or in violation of the notification procedure, as well as in case of non-elimination of violations specified in the order of the antimonopoly authority.
The application of these consequences is carried out by the court upon the suit of the antimonopoly authority.
In addition, some transactions and actions require prior approval from the FAS Russia in order to exercise state control over foreign investment.
The order of their coordination is regulated by Federal Law No. 57-FZ of 29.04.2008 "On the procedure for foreign investment in business entities of strategic importance for ensuring the country's defense and state security" (hereinafter - the Law on Foreign Investments).
Two categories of transactions are subject to control:
- the establishment by a foreign investor of control over the Russian strategic society. In this case, the investor must obtain the permission of the FAS;
- acquisition by a foreign investor of a significant stake in the Russian strategic company. In this case, notification of the FAS is required after the transaction is completed.
The procedure for preliminary approval of transactions in the FAS is a laborious and lengthy process that requires competent qualified legal assistance in preparing the full package of documents and coordinating the entire approval procedure. The specialists of the BRACE Law Firm have a great deal of practical experience in supporting the coordination of transactions in the antimonopoly authority, as well as in filing notifications of transactions.
We offer the following services:
- legal expertise of the planned transaction for the presence or absence of the need for prior agreement with the antimonopoly authority;
- preparation of an application to the antimonopoly authority and a package of documents for the transaction that requires approval;
- filing with the antimonopoly authority documents on the transaction that requires approval;
- interaction with the antimonopoly authority in the process of agreeing a transaction;
- receiving a decision and/or other documents from the antimonopoly authority on the submitted petition;
- legal examination of the transaction for the presence or absence of the need to notify the antimonopoly authority of its commission;
- preparation of notification of the transaction, as well as the necessary package of documents;
- filing with the antimonopoly authority of documents on notification of the transaction;
- obtaining a prescription and/or other documents from the antimonopoly authority on the submitted notice;
- verbal and written consulting of the customer on all issues arising in the process of agreeing the transaction by the antimonopoly authority.
- Consulting on the application of antimonopoly legislation
- Appealing decisions and orders of the antimonopoly body in the court
- Representation of interests in cases in the antimonopoly authority
- Elaboration of trade policies and other documents
- Legal support for the application of legislation on trading activities
- Legal support of inspections of antimonopoly bodies