State Antimonopoly Committee of the Russian Federation. What is the antimonopoly service

Federal Antimonopoly Service (FAS Russia)- a federal executive body that performs the functions of adopting regulatory legal acts and monitoring compliance with antimonopoly legislation, legislation in the field of activities of natural monopoly entities (in terms of the powers of the antimonopoly body established by law), advertising, control over the implementation of foreign investments in economic companies with a strategic importance for ensuring the defense of the country and the security of the state, control (supervision) in the field of state defense orders and in the field of procurement of goods, works, services for ensuring state and municipal needs, as well as harmonizing the use of closed methods for determining suppliers (contractors, performers).

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Complaint to the FAS under 44-FZ: terms, procedure, documents

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The predecessor of the Federal Antimonopoly Service is the RSFSR State Committee for Antimonopoly Policy and Support for New economic structures(GKAP of Russia) was formed in accordance with the Law of the RSFSR of July 14, 1990 "On Republican Ministries and State Committees of the RSFSR". Valery Chernogorodsky was appointed Chairman of the Committee. Headcount employees of the apparatus were defined in 150 units, the Provisional Regulations on the SCAP of Russia were introduced, which was approved by the Resolution of the Council Ministers of the RSFSR of September 10, 1990 No. 344.

In order to implement the Message of the President of the Russian Federation to the Federal Assembly of 1997 in terms of bringing the structure of the Government of the Russian Federation and the structure federal bodies executive power in accordance with the requirements of economic transformations, by Decree of the President of the Russian Federation of March 17, 1997 No. 249 “On improving the structure of federal executive bodies”, the State Committee of the Russian Federation for Antimonopoly Policy and Support for New Economic Structures was transformed into the State Antimonopoly Committee of the Russian Federation. In August 1997, Natalia Fonareva was appointed Chairman of the Committee.

On September 22, 1998, Decree of the President of the Russian Federation No. 1142 “On the structure of federal executive bodies” abolished the State Antimonopoly Committee of the Russian Federation (Chairman N. E. Fonareva), the State Committee of the Russian Federation for the Support and Development of Small Business (Chairman I. M. Khakamada), the Federal Service of the Russian Federation for the Regulation of Natural Monopolies in Transport (Head V. I. Budko) and the Federal Service of the Russian Federation for the Regulation of Natural Monopolies in the Field of Communications (Head V. M. Goryachev). In their place, the Ministry of the Russian Federation for Antimonopoly Policy and Entrepreneurship Support (MAP of Russia) was formed, to which the functions of the abolished bodies were transferred. Gennady Khodyrev was appointed minister.

The number of employees of the central office (440 units without personnel for the protection and maintenance of buildings) was approved by Decree of the Government of the Russian Federation dated December 25, 1998 No. 1564 “Issues of the Ministry of the Russian Federation on antimonopoly policy and business support”. Departments were formed in the structure of the central office: legal matters, development of competition in financial markets and control over compliance with legislation on exchanges, development and support of entrepreneurship, regulation of the activities of natural monopolies in the field of communications, regulation of the activities of natural monopolies in transport. The Regulations on the Ministry of the Russian Federation for Antimonopoly Policy and Entrepreneurship Support were approved by Decree of the Government of the Russian Federation No. 793 dated July 12, 1999. In May 1999, Ilya Yuzhanov became a minister.

On March 9, 2004, the Ministry was abolished, and its powers were transferred to other departments. The functions of the federal antimonopoly body, control over the activities of natural monopolies and over compliance with advertising legislation, which belonged to the MAP of Russia, were transferred to the newly formed Federal Antimonopoly Service. Igor Artemiev was appointed head of the service.

Functions

The main functions of the Federal Antimonopoly Service are:

control over compliance with antimonopoly legislation, including in the field of electric power industry, use of land, subsoil, water and other natural resources;
supervision and control over compliance with the legislation on natural monopolies;
supervision and control over compliance with advertising legislation;
control in the field of procurement of goods, works, services to meet state and municipal needs;
control over compliance with legislation in the field of state defense orders;
control over the implementation of foreign investments in business entities of strategic importance for ensuring the defense of the country and the security of the state.

key legislative acts, which are guided by the FAS Russia in its work, are the Federal Laws "On the Protection of Competition" , "On the Contract System in the Procurement of Goods, Works, Services for State and Municipal Needs" , "On the State Defense Order" , "On the Procedure for the Implementation of Foreign investments in business entities that are of strategic importance for ensuring the defense of the country and the security of the state”, “On Advertising”. Since February 1, 2010, the FAS Russia has been monitoring compliance with the antimonopoly requirements established by the Federal Law "On the Fundamentals of State Regulation of Trading Activities in the Russian Federation" . The FAS Russia is subordinate to the Government of the Russian Federation (subordinates directly to the Chairman of the Government of the Russian Federation). The Service submits an annual report on the results of its activities to the Government of the Russian Federation.

Management

Powers and order of consideration of cases

In accordance with the Regulations on the FAS Russia, the service is endowed with the following main powers:

adoption of normative acts on issues within the competence of the service (only the central office);
monitoring compliance by commercial and non-profit organizations, individuals (including individual entrepreneurs), federal executive authorities, bodies state power subjects of the Russian Federation and local authorities of legislation in the established area, including the consideration of cases of violations of the law, the issuance of binding orders, the conduct of scheduled and unscheduled inspections, bringing those guilty of violating the law to administrative responsibility;
control of economic concentration in commodity markets, coordination of transactions with shares (shares) and property commercial organizations in cases stipulated by the antimonopoly legislation;
conducting product market research and establishing the availability dominant position individual business entities on them;
maintaining a register of unscrupulous suppliers, which includes information about suppliers (contractors) who evaded the conclusion of state or municipal contracts based on the results of the auction, as well as suppliers (contractors), contracts with which were terminated in court due to non-fulfillment or improper fulfillment of their obligations;
consideration of applications of foreign investors for approval of transactions with business companies which are of strategic importance for ensuring the defense of the country and the security of the state, or on agreeing to establish control over such societies.

The Federal Antimonopoly Service of Russia and its territorial bodies initiate cases of violations of the law in the area of their competence based on applications from individuals and legal entities, materials from law enforcement agencies, media reports, as well as on their own initiative based on the results of inspections carried out by the service. Cases are considered by a commission created for these purposes, consisting of employees of the antimonopoly authority in the amount of at least three people. The chairman of the commission is the head of the antimonopoly authority or his deputy. When considering cases in relation to credit institutions, half of the composition of the commission should be representatives of the Central Bank of the Russian Federation. Cases are considered by a commission with the participation of the parties (the applicant and the defendant), who state their position and provide evidence in support of it, after which the commission, in the absence of the parties, makes a decision on the case by a majority vote of the commission members by open voting. If it is necessary to obtain additional evidence, to involve in the case stakeholders consideration of the case may be postponed, and if necessary, examinations - suspended. Based on the results of the consideration of the case, the proceedings on the case may be terminated due to the absence of violations of the law in the actions considered by the commission, or the defendant is found to have violated the relevant norms of the law - in this case, he is issued an order to stop the violation. The decision and order of the antimonopoly authority may be appealed in court.

Main activities

Based on the Report on the results and main activities of the FAS Russia for 2008-2010, submitted by the FAS Russia to the Government of the Russian Federation, the strategic task of the FAS Russia is to ensure freedom of competition and limit monopolistic activities within the single economic space of the Russian Federation. Based on this task, the FAS Russia has defined 3 main goals of its activities:

Creation of conditions for the development of competition in the areas of activity of economic entities that are not related to natural monopolies.
Prevention and suppression of anti-competitive interference of state authorities and local self-government in the functioning of markets, reduction of corruption risks when placing state and municipal orders.
Ensuring equal access of consumers to goods, works, services sold by subjects of natural monopolies, and development of competition in potentially competitive activities of subjects of natural monopolies.

The activities of the FAS Russia in the framework of achieving the first of these goals are aimed at suppressing the anti-competitive behavior of individual economic entities in the commodity and financial markets, including reducing the level of unfair competition, preventing and suppressing abuses of a dominant position, agreements and concerted actions that restrict competition (the so-called "cartel collusion"), improving the quality of ongoing research on the state competitive environment in commodity markets. Great importance The Federal Antimonopoly Service of Russia also pays attention to the direction of control over authorities at all levels in order to prevent the creation of administrative barriers for the implementation entrepreneurial activity. Within the framework of the control of the authorities, there are three main areas: control of the procedures for placing state and municipal orders; control over the provision of state and municipal preferences to individual market participants; suppression of agreements restricting competition and concerted actions of state authorities and local self-government with individual economic entities.

Control over the implementation of foreign investments in the Russian Federation

The FAS Russia is also an authorized body for the control of foreign investments in the Russian Federation. The Federal Antimonopoly Service of Russia operates within the framework of Law No. 160-FZ “On Foreign Investments in the Russian Federation” and Law No. 57-FZ “On the Procedure for Making Foreign Investments in Business Companies of Strategic Importance for Ensuring the Defense of the Country and the Security of the State” .

Law No. 57-FZ establishes a clear procedure for foreign investors to acquire shares (stakes) in strategic business companies, which includes a list of strategic activities; the procedure for considering applications for preliminary approval of transactions, as well as the consequences and sanctions for non-compliance with the requirements of the law.

At the same time, the procedure for coordinating transactions is quite easy and transparent. A foreign investor does not need to take a number of steps on the way to obtaining a decision on the approval of the transaction. He filed a petition with the FAS - and received a decision from the FAS: the service itself interacts with the Government Commission for Control over Foreign Investments in the Russian Federation, which makes the final decision on transactions.

In total, over 6 years of law enforcement of Law No. 57-FZ, the FAS Russia received 331 petitions. Of these, no more than half required approval, and the refusal to complete the transaction was issued only in 9 cases. At the same time, not a single decision of the Government Commission was appealed in court, although such a possibility is provided for in Art. 11 of Law No. 57-FZ.

The largest transactions of foreign investors include:

1. Deal of Danone (France) in relation to Unimilk (dairy products);

2. Pepsi-Cola (USA) deal with Wimm-Bill-Dann (dairy products, juices);

3. transaction of the Coca-Cola Company (USA) in respect of Nidan Juices (juices, drinks);

4. transaction by Alstom (France) in relation to the Tver Carriage Works and the Bryansk Machine-Building Plant (rolling stock production);

5. transaction of the company Agusta Westland (Italy) in relation to Helivert (manufacture of helicopters and engines for them);

6. transaction of the Changi company (Singapore) in relation to the airports of such cities as Anapa, Sochi, Krasnodar;

7. transaction of the company Schneider Electric (France) in relation to the Electroshield (production of electrical equipment);

8. transaction of Liebherr (Switzerland) in relation to the Nizhny Novgorod company "Liebherr Airospace" (production of aircraft components);

9. transaction by Global Ports (Cyprus, Denmark-Meller) in relation to the First Container Terminal;

10. Transactions between Total (France) and China National Corporation for Exploration and Development of Oil and Gas in Yamal LNG.

The total amount of transactions of foreign investors in relation to Russian companies-strategists for 6 years amounted to almost 1 trillion rubles.

The ease and transparency of the mechanism for coordinating transactions was achieved, among other things, through the adoption of amendments to Law No. 57-FZ.

For the first time, a number of important amendments aimed at simplifying the requirements for prior approval were adopted at the end of 2011. In particular, strategic activities were reduced (encryption and cryptography for banks, operation of radiation sources in the civilian sector of the economy, for which such activities are not the main ones); transactions of organizations controlled by citizens - tax residents of the Russian Federation who do not have other citizenship are removed from the law; the threshold values in subsoil users have been changed from 10 to 25%, and the need for preliminary approval of transactions, international financial institutions to which the Russian Federation is a member.

Currently, the FAS Russia has prepared a number of amendments aimed at simplifying the provisions of the law, clarifying them, as well as extending the law to certain transactions:

Exclusion from strategic activities - activity on the use of pathogens infectious diseases economic companies whose main activity is related to the production of food products;

Exemption from the need to coordinate intra-group transactions, including in relation to subsoil users, which are made by foreign investors controlled by one person;

Exclusion of the need for preliminary approval of transactions of foreign investors who own 75% or more in authorized capital subsoil users;

Possibility to extend the term of the previously issued decision on the preliminary approval of the transaction;

Obligation to notify foreign investors authorized body on transactions, previously agreed by the Government Commission;

Extension of the Law to transactions with the property of a strategic company (main production assets), the value of which is 25 or more percent of the book value of the assets of such an economic company, determined according to its accounting data as of the last reporting date;

Mandatory disclosure of information about ultimate beneficiaries;

Completion of the list of obligations - processing of aquatic biological resources on the territory of the Russian Federation;

Concomitant amendments to certain federal laws.

In the first reading, a number of amendments were adopted by the State Duma of the Federal Assembly of the Russian Federation on May 14, 2013. Currently, preparations are underway for the second reading.

Antitrust regulation in retail trade

The Federal Antimonopoly Service plays an important role in compliance with economic activity standards of good business conduct. One of the department's functions is antimonopoly regulation in retail trade.

Since February 1, 2010, the FAS Russia has been carrying out state control compliance with antimonopoly requirements established by the Federal Law “On state regulation trading activities in the Russian Federation” No. 381-FZ dated December 28, 2009.

Directly, the functions of antimonopoly control and supervision are entrusted to the Federal Antimonopoly Service of Russia to the Department for Control of the Social Sphere and Trade. In accordance with the Regulations on the Department, approved by the Order of the FAS Russia, the main tasks of the department are: to exercise control and supervision of compliance with antimonopoly legislation in the field of trade and services in the non-manufacturing sector; implementation of measures to prevent and suppress violations of antimonopoly legislation in social sphere and trade; methodological support of the structural subdivisions of the FAS Russia and its territorial bodies, as well as coordination of the activities of the territorial bodies of the FAS Russia on issues within the competence of the Department.

"Federal Law "On State Regulation of Trading Activities in the Russian Federation" No. 381-FZ"

Federal Law No. 381-FZ of December 28, 2009 “On the State Regulation of Trading Activities in the Russian Federation” (the Law on Trade) came into force on February 1, 2010. The law is aimed at streamlining relations related to the organization of trading activities on the territory of the Russian Federation in order to create a transparent and predictable procedure for the implementation of trading activities, eliminate unfair practices and pressure on counterparties from retail chains and suppliers, as well as the elimination of unnecessary administrative barriers to trade, support for small and medium-sized businesses in the field of trade and production food products.

The Law on Trade contains a number of norms aimed at improving antimonopoly regulation and developing competition in the service market retail.

Thus, part 6 of Article 9 of the Law on Trade establishes a ban on the inclusion by participants in trading activities in the price of the contract for the supply of food products to the trading network of any types of remuneration for the fulfillment by the trading network of the terms of this agreement, except for those allowed by part 4 of Article 9 of the Law on Trade. In accordance with part 12 of Article 9 of the Law on Trade, it is prohibited to include in a contract for the supply of food products conditions on the performance by the supplier of actions or on the provision of services aimed at promoting goods (services for advertising goods, marketing and others), as well as forcing the supplier to conclude such contracts for the purpose of concluding a supply agreement. These norms are aimed at suppressing one of the most common ways for retail chains to impose on counterparties and create discriminatory conditions for food suppliers to access retail chains.

In addition, Article 9 of the Law on Trade establishes an obligation for economic entities engaged in trading activities and economic entities supplying food products to retail chains to post (provide) information on the conditions for selecting a counterparty to conclude a contract for the supply of food products and on the essential conditions for such contracts.

Part 1 of Article 13 of the Trade Law contains antimonopoly rules and a list of actions that are prohibited from being taken by business entities engaged in trading activities through the organization of a trade network and business entities supplying food products to retail chains, since these actions may lead to restriction of competition in the field of wholesale and (or) retail trade and infringement of the rights of other economic entities.

Also, the Law on Trade (Article 14) establishes restrictions on the acquisition of additional retail space for the purposes of trading activities. These restrictions will apply to retail chains whose share exceeds 25% within the borders of a constituent entity of the Russian Federation, including within the boundaries of the federal city of Moscow or St. Petersburg, within the boundaries of a municipal district, urban district. These restrictions will create opportunities for the development of market conditions, the development of retail chains horizontally. The implementation of the norm will help ensure equal access of economic entities to the retail services market, protect and preserve the competitive environment in this product market, which in turn should help reduce prices and improve consumer service. In addition, this norm is aimed at supporting small and medium-sized businesses in the retail services market.

In addition, Article 15 of the Law on Trade defines rules aimed at eliminating regional barriers in retail trade. Thus, state authorities of the constituent entities of the Russian Federation, local governments, other bodies or organizations exercising the functions of these bodies are prohibited from adopting acts and (or) carrying out actions (inaction) that lead or may lead to the establishment on the commodity market of rules for trading activities that differ from similar rules established by federal laws and other regulatory legal acts Russian Federation.

With In order to ensure the implementation and application of the requirements of the Law on Trade, Articles 14.40 - 14.42 of the Code of Administrative Offenses provide for liability for violation of antimonopoly rules and requirements established by law in the course of trading activities.

Federal Law No. 411-FZ of December 28, 2010 “On Amendments to the Code of Administrative Offenses of the Russian Federation” came into force on December 31, 2010.

The grounds for bringing persons to administrative responsibility under Articles 14.40 - 14.42 of the Code of Administrative Offenses are violations of antimonopoly rules (Article 14.40), requirements for providing information on the conditions for concluding a contract for the supply of food products (Article 14.41) and requirements for the conditions for concluding a supply contract food products (Article 14.42) established by the Trade Law.

So, from the moment these changes come into force, in accordance with Part 1 of Article 23.48 of the Code of Administrative Offenses, the federal antimonopoly body, its territorial bodies consider cases of administrative offenses, liability for which is established by Articles 14.40 - 14.42 of the Code of Administrative Offenses.

The procedure and terms for bringing persons to administrative responsibility under these articles are established by the provisions of the Code of Administrative Offenses.

In accordance with part 1 of Article 4.5 of the Code of Administrative Offenses, a decision on a case on an administrative offense cannot be issued after two months from the date of commission administrative offense, but for violation of the antimonopoly legislation of the Russian Federation after one year from the date of the administrative offense.

In case of a continuing administrative offense, the time limits provided for by Part 1 of Article 4.5 of the Code of Administrative Offenses begin to be calculated from the day the administrative offense was discovered (Part 2 of Article 4.5 of the Code of Administrative Offenses).

In accordance with Part 1 of Article 2 of the Law on Protection of Competition, the antimonopoly legislation of the Russian Federation is based on the Constitution of the Russian Federation, Civil Code Russian Federation and consists of this Federal Law, other federal laws governing the relations specified in Article 3 of this Law.

Article 13 of Chapter 3 of the Law on Trade establishes antimonopoly rules for economic entities engaged in trading activities and economic entities engaged in the supply of food products

Therefore, the said provision of the Commerce Act is integral part antimonopoly legislation, liability for violation of which is established by Article 14.40 of the Code of Administrative Offenses.

Cases of administrative offenses, liability for which is provided for by Article 14.40 of the Code of Administrative Offenses, are initiated from the moment the decision of the commission of the antimonopoly body, which established the fact of violation of the antimonopoly legislation of the Russian Federation, comes into force.

At the same time, it should be taken into account that for the commission of prohibited actions listed in Article 14.40 of the Code of Administrative Offenses, economic entities may be held administratively liable, taking into account the statute of limitations, part of established 1 article 4.5 of the Code of Administrative Offenses, i.e. within one year from the date of committing an administrative offense, and in case of a continuing offense within 1 year from the moment of its discovery.

For violation of other provisions of the Law on Trade (including violation of Article 9), liability is provided for under Articles 14.41 and 14.42 of the Code of Administrative Offenses.

The statute of limitations for bringing to administrative responsibility under Articles 14.41-14.42 of the Code of Administrative Offenses is determined in accordance with Part 1 of Article 4.5 of the Code of Administrative Offenses - within two months from the date of the administrative offense, and if it lasts from the day of discovery.

In this case, according to Part 1 of Article 28.1 of the Code of Administrative Offenses, the reasons for initiating a case on an administrative offense are:

Direct detection by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the presence of an event of an administrative offense;

Received from law enforcement agencies, as well as from other government agencies, local self-government bodies, from public associations materials containing data indicating the presence of an event of an administrative offense;

Messages and statements of individuals and legal entities, as well as messages in the media mass media, containing data indicating the presence of an event of an administrative offense.

Therefore, in this case, an administrative offense case is initiated immediately after receiving official sufficient data indicating the commission of an administrative offense in the field of trade legislation.

Since 2010, the FAS Russia has been operating the Expert Council for the Development of Competition in the Retail Trade. The Expert Council was formed to promote the development of competition in the retail trade, as well as to consider issues related to compliance by federal executive authorities, state authorities of the constituent entities of the Russian Federation, and local governments with the antimonopoly legislation of the Russian Federation in the retail trade. The Expert Council is a consultative and advisory body under the Federal Antimonopoly Service.

The main tasks of the Expert Council are:

Promoting the development of competition in the retail sector;

Assistance in the protection of competition, including the prevention, suppression of monopolistic activities and unfair competition in the retail trade;

Preparation of proposals for improving legislation in the field of retail trade;

Examination of documents and evaluation of information submitted for consideration by the Expert Council by its members;

Interaction on issues of improving the antimonopoly legislation of the Russian Federation in the field of retail trade with federal executive authorities, state authorities of the constituent entities of the Russian Federation, local governments, other bodies and organizations exercising the functions of these bodies and organizations and participants in the retail services market;

Facilitate media coverage topical issues development of competition and compliance with the antimonopoly legislation of the Russian Federation in the field of retail trade.

The Expert Council includes specialists from the Federal Antimonopoly Service of Russia, representatives of other federal executive authorities, state authorities of the constituent entities of the Russian Federation, scientific organizations, participants in the retail services market, representatives of associations, public associations operating in the retail trade.

Criticism

According to the Global Competition Review, the Federal Antimonopoly Service of Russia annually initiates more cases than all the antimonopoly authorities in the world combined. So, total number cases initiated in 2012 amounted to over 55 thousand, of which 10 thousand - under the law "on protection of competition". There were 2,582 cases of abuse of dominance in Russia, 16 in the US, 1 in the UK, 23 in France, and 35 in Germany. At the same time, the sharp increase in the number of cases observed since the mid-2000s. in Russia, was accompanied by an increase in the share of cases against small and medium-sized businesses. Calling a small business a monopolist and punishing it is possible only in Russia. In the United States, the smallest of the defendants in antitrust cases for last years is Transitional Optical, whose turnover in 2012 amounted to about 800 million US dollars (about 45 billion rubles). Cases of the Federal Antimonopoly Service of Russia against individual entrepreneurs, homeowners associations, garage cooperatives and other pseudo-monopolists receive wide publicity in the media

According to calculations public organization Delovaya Rossiya, in 2012, in cases challenged in courts, the share of cases against small and medium-sized businesses was 56%, and in cases that did not reach the court - over 80%. According to some experts, the activity of the FAS against small and medium-sized businesses hinders rather than promotes the development of competition. Critics also note the low economic significance of some cases: for example, the conspiracy of IP Avtonomova E.V. and IP Koshechkina I.S. in the form of establishing the same price for the rental of inflatable trampolines, the cartel of the food supplier Yudana LLC and IP Fedorovsky A.E. and IP Chalym V.E. and other things. A travel agency from Barnaul was named a monopolist in its own IT product, a cinema was named a monopolist in the popcorn market within shopping center in Novosibirsk. Dozens of cases have been initiated by the FAS Russia against HOA-“monopolists” within the boundaries of their own attic. An entrepreneur from Elista Mamonenkova is facing a cartel case for asking another entrepreneur (a competitor, according to the Federal Antimonopoly Service) to replace her broken down Gazelle on the day the car was being repaired. 4 taxi drivers, for a price increase of 20 rubles. in Rubtsovsk on New Year's Eve, the spouses of farmers from Stavropol for a cartel (between husband and wife) at the auction for the lease of an unneeded land plot, and hundreds of others. Some experts point out that in Russian legislation there are no rules providing "immunity" from antimonopoly regulation for small and medium-sized businesses. This has led to a sharp increase in the proportion of antitrust cases that are dismissed by courts for insignificance – from 3% to 8%. Individual entrepreneur Gareev and Flagman-Vostok LLC ( Khabarovsk region) were fined for colluding to set the sale price of gasoline, on the basis that the costs are different, and the prices differ by no more than 80 kopecks. per litre. The individual entrepreneur S.V. Steklyannikov was recognized as occupying a dominant position in the market of services for veterinary and sanitary treatment of vehicles in the city of Magadan and was fined for setting monopoly high prices. For 5 months he earned 160, and spent 90 thousand rubles, that is, the monopoly profit amounted to 14 thousand rubles. monthly . IP Meteleva, (Syktyvkar), engaged in the sale of persistent cream hair dye for 17 square meters. m of leased area, was accused by the Federal Antimonopoly Service of Russia of concluding a vertical agreement for the sale of a permanent cream-dye for hair.

And if in the USA up to 90% of fines are imposed on foreign companies, that is, on competitors of American business, then in Russia this figure does not exceed 1%. Simply put, the FAS very, very often hits its own.

Another cause of excitement a large number affairs, is the "stick" system of motivation of employees of the FAS Russia. According to RANH and GS, only 2% of antimonopoly cases contain market analysis. In accordance with the order of the Federal Antimonopoly Service of Russia No. 220 dated April 28, 2010 "On approval of the procedure for analyzing the state of competition in the commodity market, it is not required to analyze the state of competition in the commodity market when establishing the dominant position of an economic entity (economic entities) if the economic entity carries out the production (sale) of goods under conditions of natural monopoly, as well as when considering cases of violation of antimonopoly legislation initiated on the grounds of violation of parts 1, 2 and 5 of Article 11, Articles 14, 15, 16, 17, 17.1, 18 of the Law on Protection of Competition , and also if the company is included in the Register of economic entities with a market share of more than 35% (clause 1.3. of the Procedure). Thus, the FAS Russia, by its order, released itself from the obligation to conduct market analysis in more than 90% of categories of cases. According to experts, this state of affairs leads to the fact that monopolists-factories appear within the boundaries of the territory of the plant, the monopoly of the HOA in the boundaries of the house. According to prof. S.B. Avdasheva, calling a small business a monopolist is like stealing silver spoons

The need to stop the antimonopoly prosecution of SMEs (as well as companies with small market shares) was repeatedly noted by the Government of the Russian Federation (Orders dated 04.07.2013 No. DM-P13-4698, dated 30.06.2014 No. DM-P36-4825, dated 03.06.2014 No. AD -P13-4090, etc.), Reports of the Ministry of Economic Development (dated 28.07.2014 No. DO5i-693) and the Business Ombudsman to the President of the Russian Federation, Proposals of "Business Russia" (letter to the Presidential Administration dated 01.04.2014 No. IP-513/04). However, the FAS Russia ignores the proposals and does not fulfill the instructions.

One of the main priorities of the FAS Russia was the fight against cartels. Since 2009, cartels have become a criminal offense (up to 3 years). The definition of a cartel is given by Article 11 of the Federal Law "On Protection of Competition". According to some experts, the definition of a cartel is not clear enough, which allows one to very freely interpret almost any contract, including an ordinary contract between a seller and a buyer, as a cartel, or by threatening to initiate such a case, which entails corruption risks for companies. As a result, 2/3 of cartel cases were filed against small businesses. At the same time, in the US and the EU, there are no cartel cases against small businesses and companies with a small market share at all. The cartel in the caustic soda market, which was repeatedly included in the list of the best cases of the FAS, was established by sending fictitious letters from fictitious e-mail addresses from the working computers of the FAS employees on behalf of the accused companies (JSC Halopolimer, etc.). On 03.09.2014, in case A40-161484/2012, no facts of mailing letters from the working computers of the FAS Russia employees were established.

Russia ranks 1st in the world and in the number of "raids at dawn" (sudden checks). The FAS Russia is not obliged to notify the prosecutor's office of unscheduled inspections, which, according to business and experts, increases the risk of "custom inspections" . So, in relation to Argus-SPEKTR CJSC, whose complex "Sagittarius-monitoring for calling fire brigade not only excluded intermediaries from transmitting a signal about a fire and saved the budget over 20 billion rubles. annually, reduced the death rate from fires by 14 times, an unscheduled inspection was carried out with numerous violations in the form of a search. In 2014, at the suit of CJSC Argus-Spectrum, the Supreme Arbitration Court, and then the Supreme Court, recognized the methodological recommendations of the FAS Russia on conducting unscheduled inspections as illegal. If you read the court decision itself, and not the interpretation, it becomes clear that the methodological recommendations of the FAS Russia were declared illegal by the court only on the grounds that the procedure for their registration with the Ministry of Justice of the Russian Federation was violated, while there were no contradictions in specific norms of data. guidelines legislation, in particular, the procedure for conducting unscheduled inspections established by the Federal Law "On Protection of Competition", nor any violations in the FAS Russia's inspection of CJSC "Argus-Spectrum" were found by the court, in the transfer of the complaint of CJSC "Argus-spectrum" for consideration to the Presidium of the Supreme court of the Russian Federation was denied

In addition, the FAS Russia annually considers more than 4.5 thousand transactions of economic concentration (3 times more than in the United States, 20-50 times more than any of the major European countries), of which 5-10 mergers per year are rejected (0 .2% of cases). For another 200-300 mergers, the FAS issues an order, of which 4% are structural (85% in the EU), and behavioral in 96% (15% in the EU). An analysis by the National Research University Higher School of Economics showed that the prescriptions did not positive impact for competition.

The functions of the FAS Russia also include maintaining the Register of companies with a market share of over 35%: There is no such Register anywhere in the world, except for Russia, Kazakhstan and Ukraine - the antimonopoly authority analyzes the market every time and proves its monopoly position. Of the almost 10 thousand persons involved in the Register, 65% are small and medium-sized businesses (JSC Stamp and Engraving Factory, LLC Pchela, LLC S Light Parom), and 15% are liquidated enterprises. Western researchers claim that the Register has been in existence since the 1990s. was used to persecute small businesses and for corrupt purposes.

Within the framework of rule-making, the FAS Russia introduced large-scale changes (antimonopoly packages) to the law “On Protection of Competition” 3 times. Regulation is constantly being tightened. In addition, in April 2013, the FAS submitted to the Government of the Russian Federation the “fourth antimonopoly package”, which significantly worsens the situation of business, introduces new prohibitions and new forms of direct intervention of the antimonopoly authority in economic activity companies and government agencies, introduces a number of innovations that are contrary to world experience and have corruption risks.

Within the framework of the law “On Advertising”, the FAS Russia initiates 5,000 cases annually. The absolute majority is against SMEs, according to formal, evaluative and subjective criteria (an individual entrepreneur from Khabarovsk was fined for improper advertising of beer (hung a poster with a picture of a shrimp on the wall of the store), Vizus-1 Eye Microsurgery Center LLC from Tyumen was fined for lack of in an advertisement for a doctor's personal phone, a taxi driver from Kostroma was fined for insulting bread (posted an advertisement "if you make 4 mistakes in the word bread, you get the word" taxi "), a case was initiated against a Siberian bank for gay propaganda (the image of S. Svetlakov in the ad was used in the role of Ivan Dulin from "Our Russia"), against the company "Don-stroy" for advertising: "There is no Santa Claus, but there are discounts", individual entrepreneur from the city of Yakutsk for advertising a flower shop using the image of a Red Army soldier from a propaganda poster by artist D. Moor: “Did you buy flowers for your beloved?” , JSC "Ostankino Meat Processing Plant" for the commercial "Dad can", because the advertisement demonstrates the movement vehicle in violation of traffic rules

Within the framework of the Law “On the Placement of State Orders” (Federal Law No. 94-FZ of July 21, 2005 “On the Placement of Orders for the Supply of Goods, the Performance of Work, the Provision of Services for State and Municipal Needs”, since 2014 - the Federal Law of 05.04. 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”), the FAS Russia initiates 17,000 cases annually, only for procedural violations, in the presence of “emergency” powers (the right to suspend trading).

In total, the total number of cases initiated by the FAS Russia is 55 thousand - more than in all other countries of the world combined.

Antimonopoly policy as part of domestic and foreign policy And although in 2013-2014. FAS Russia launched a series of investigations into foreign cartels. The violation was expressed in the fact that the corporation forbade the stations to repair cars of other brands. However, with regard to RENAULT TRUCKS, SAS, the case was dismissed, and fines were imposed on the service stations. In fact, Russian small businesses were sanctioned by the FAS Russia for imposing the terms of an agreement on them from a foreign auto giant.

Experts note that sometimes FAS Russia initiates cases against Russian companies in the interests of their foreign competitors. In February 2013, the FAS Russia began an unscheduled inspection of CJSC Argus-Spektr for compliance with antimonopoly legislation, which lasted 11 months instead of the three prescribed by law. In November 2013, the FAS Russia posted a release on its website in which it reported that, based on the results of an unscheduled inspection, some signs of the conclusion of prohibited "vertical" agreements between CJSC Argus-Spectrum and its dealers and with regional divisions of the Russian Emergencies Ministry were established. CJSC "Argus-Spektr" won an open tender for the development of a system for automatically calling the fire brigade. The Ministry of Emergency Situations, by order of the President and the Government, began to introduce automation everywhere at social facilities - the PAK Sagittarius-monitoring complex, developed by Argus-Spectrum, to call the fire brigade. This not only excluded intermediaries from the chain, which saves the budget over 20 billion rubles. annually, but also allowed to reduce mortality in fires by 14 times. However, the FAS actively began actions against the company. In total, there were dozens of cases against fire services, 83 company checks, hundreds of inquiries, press conferences and attempts to change the law in the interests of intermediaries. Argus-Spektr has already won more than 10 lawsuits, including in the Supreme Arbitration Court and the Supreme Court on the invalidation of the methodological recommendations of the FAS Russia on conducting inspections. This case is generally recognized as the most significant case of the highest courts in 2014. It is noteworthy that the active actions of the FAS Russia against the company began when it began to actively enter foreign markets, installing its systems on one of the castles of the Queen of Great Britain, Cambridge and Eton universities and other significant objects, which did not please the company's foreign competitors.

For the specifics of the marketing policy of anti-virus programs, the FAS Russia initiated proceedings against Russian computer software developers Kaspersky Lab CJSC and Doctor Web LLC, while the similar policy of foreign competitors Eset (Slovakia) and Panda Antivirus (Spain) did not cause remarks from the FAS Russia.

Experts note that the FAS Russia is somewhat more willing to initiate proceedings on complaints from foreign companies against their Russian competitors, rather than vice versa. Illustrative are the cases that the Federal Antimonopoly Service of Russia initiated against Nikola kvass for advertising “No “colanization”, kvass is the health of the nation!”, on the complaint of Coca-Cola and PepsiCo concerns, against Federal Service on veterinary and phytosanitary supervision for closing the domestic market for some suppliers of Norwegian fish, against Kirieshki croutons against the complaint of Bridgetown Foods, against the retailer Kalinka Trade LLC for advertising that the German hypermarket chain Media Markt did not like, against the Moscow Metro for the purchase 768 new generation railcars from a domestic company, following a complaint from CAF and Bombardier, etc.

The FAS Russia has prepared methodological recommendations “Principles economic analysis pricing practices for their compliance with the Law on Protection of Competition”, which are aimed at price orientation domestic manufacturers on foreign commodity markets and make them dependent on foreign market conditions. The adoption of methodological recommendations will entail the application of antitrust sanctions against Russian companies if they start exporting products, for example, to China. In fact, the FAS Russia is pushing companies to build new factories in China, not in Russia.

Moreover, according to the deputies State Duma, and experts in the initiatives of the FAS Russia, the interests of the beer and tobacco lobbies are traced, the market of which is more than 90% owned foreign companies. It's about on the proposal of the Head of the FAS Russia to lift the ban on the sale of alcohol and cigarettes in stalls.

Experts point to the close relationship between the leadership of the FAS Russia and the alcohol and tobacco lobby in connection with the cases of the FAS Russia against the administration Krasnodar Territory and the Arkhangelsk region for introducing restrictions on the sale of energy alcoholic cocktails in the territory of the region, a legislative initiative to limit the turnover alcoholic products during periods natural Disasters in the Amur region or school graduations in the city of Khanty-Mansiysk.

Subsequently the Supreme court of Arbitration canceled the decision of the FAS Russia regarding the administration of the Krasnodar Territory, the other decisions of the FAS Russia were also canceled, which confirmed the right of the regions to conduct anti-alcohol policy within their competence.

Restriction Bill plastic containers with a capacity of more than 1.5 liters for bottling alcohol was criticized by the FAS Russia: On June 25, 2013, a meeting was held in the central office of the FAS Russia with the participation of a representative of the US Embassy A.N. Putia and foreign brewing companies (Russian brewers did not participate), as a result of which a joint position was sent to the Government.

The Chamber of Commerce and Industry of the Russian Federation highly appreciates the activities of the FAS already because active monopoly regulation, protection of fair competition, especially during a crisis, is one of the conditions for the survival and development of small and medium-sized businesses (SMEs) in our country. This was stated by the President of the Chamber of Commerce and Industry of the Russian Federation Sergey Katyrin after the anniversary meeting of the board of the Federal Antimonopoly Service.

Advisory bodies under the FAS Russia

The FAS Russia has a Public Advisory Council, which includes representatives non-profit organizations, business associations . The Council monitors the activities of the FAS Russia, develops recommendations for improving antimonopoly legislation and the practice of suppressing its violations. Similar councils operate in the territorial departments of the FAS Russia. The FAS Russia also has expert councils in certain areas of the service’s activities, in particular, the Expert Council on Advertising, the Expert Council on Unfair Competition, the Expert Council on the Protection of Competition in the Financial Services Market, the Expert Council on the Electric Power Industry, the Expert Council on Communications, the Expert Council for the agro-industrial complex, the Expert Council for the Development of Competition in the Housing and Utilities Sector, the Expert Council for the Support of Small and Medium-Sized Businesses. The Expert Councils include market participants, representatives of non-profit organizations and regulatory authorities.

Structure

The structure of the FAS RF includes the central office of the service, consisting of sectoral departments, and territorial bodies. Currently, the number of territorial bodies of the FAS Russia in the subjects of the Russian Federation is 84.

- “On protection of competition”. This normative document defines competition as a rivalry between at least two economic entities in conditions where none of them can unilaterally influence the conditions for the sale of goods and services produced by them. Accordingly, the law refers to unfair competition such actions of an economic entity, one or more, which are aimed at obtaining advantages in the implementation of entrepreneurial activities.

Since such actions do not guarantee equal conditions of sale, unfair competition is a factor that hinders the development of enterprises offering better products and does not guarantee the consumer the opportunity to independently choose the product or service that suits him to a greater extent. Such activity is considered illegal and a special Federal Antimonopoly Service (FAS) has been created to detect and suppress it.

Functions of the Federal Antimonopoly Service

Control over compliance with the laws of the market and free competition in Russia is entrusted to the FAS, whose functions include analyzing the state of competition in order to identify the dominant position of a particular entity, identifying cases of restricting or eliminating competition, as well as preventing such cases.

FAS was established in 2004 by Decree of the President of the Russian Federation, the main document regulating its activities is the “Regulations on the Federal Antimonopoly Service”. This state organization vested with great powers and monitors compliance with antitrust laws by commercial and non-commercial organizations. In addition, its functions also include control over enterprises that are natural monopolists, whose actions may infringe on the interests of consumers of the goods they produce. The FAS also controls the subjects of the wholesale and retail electricity markets, which, by virtue of objective reasons occupy a unique position in these markets.

Broad powers allow the antimonopoly service to apply to violators the measures of influence provided for by law, which are both restrictive and preventive, as well as preventive. It is assumed that these measures will be able to eliminate unfair competition and fully ensure the rights of consumers of goods and services.

Decree of the Government of the Russian Federation of June 30, 2004 N 331
"On Approval of the Regulations on the Federal Antimonopoly Service"

With changes and additions from:

October 27, November 28, 2006, February 8, 2007, March 28, October 27, November 7, December 29, 2008, September 15, 2009, February 20, June 10, 15, 2010, March 24, April 25, October 21, 2011, June 25, September 18, December 20, 2012, August 26, November 2, 2013, August 26, December 25, 2014, March 2, September 4, October 24, 2, December 25, 2015, July 1, September 14, October 17, 2016

The Government of the Russian Federation decides:

2. Before October 1, 2004, the Federal Antimonopoly Service shall submit proposals to the Government of the Russian Federation on amendments to the legislation of the Russian Federation in order to exclude redundant and duplicative functions in the established field of activity.

Information about changes:

5.3.3.3. provision by federal executive bodies, state authorities of the constituent entities of the Russian Federation, local self-government bodies, other bodies or organizations exercising the functions of these bodies of state or municipal preferences in cases established by anti monopoly legislation ;

5.3.3.4. the use of closed methods for determining suppliers (contractors, performers);

5.3.3.5. the possibility of concluding a contract with a single supplier (contractor, performer) in cases provided for legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs;

Information about changes:

5.5. performs the functions of the main manager and recipient of federal budget funds provided for the maintenance of the Service and the implementation of the functions assigned to the Service;

5.6. organizes the reception of citizens, ensures timely and complete consideration of oral and written appeals from citizens, making decisions on them and sending responses to applicants within the period established by the legislation of the Russian Federation;

6. The Federal Antimonopoly Service, in order to exercise its powers in the established area of activity, has the right to:

6.1. to request and receive in accordance with the established procedure the information necessary for making decisions on issues within the competence of the Service;

Information about changes:

Decree Government of the Russian Federation dated September 4, 2015 N 941 The Regulation was supplemented by subparagraph 6.1.1

6.1.1. adopt mandatory for subjects of natural monopolies solutions on the introduction, amendment or termination of regulation, application of the methods of regulation provided for legislation on natural monopolies in terms of determining (setting) prices (tariffs) and exercising control over issues related to the determination (setting) and application of prices (tariffs);

6.2. order the necessary studies, tests, analyzes and evaluations, as well as scientific research on issues of supervision in the established field of activity;

6.3. give legal and individuals clarifications on issues within the competence of the Service;

6.4. exercise control over the activities of the territorial bodies of the Service;

6.5. involve scientific and other organizations, scientists and specialists in the prescribed manner to study issues in the established field of activity;

6.6. apply restrictive, preventive and preventive measures provided for by the legislation of the Russian Federation, aimed at preventing and (or) suppressing violations by legal entities and citizens mandatory requirements in the established field of activity, as well as measures to eliminate the consequences of these violations;

6.7. create coordinating, advisory and expert bodies (councils, commissions, groups, colleges), including interdepartmental, in the established field of activity;

6.9. establish in the manner prescribed by the regulatory legal acts of the Russian Federation, a departmental insignia that gives the right to confer the title of "Veteran of Labour" and other departmental awards and award them to employees of the central office of the Service, its territorial bodies, as well as other persons carrying out activities in the established field , approve the provisions on these badges and awards, as well as their descriptions.

7. The Federal Antimonopoly Service is not entitled to exercise in the established area of activity the functions of managing state property and providing paid services, except for cases established by decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation.

Installed first paragraph of this paragraph, the restrictions do not apply to the powers of the head of the Property Management Service assigned to the Service on the right operational management, solving personnel issues and issues of organizing the activities of the Service.

When implementing legal regulation in the established field of activity, the Service is not entitled to establish the functions and powers of federal state authorities, state authorities of constituent entities of the Russian Federation, local governments that are not provided for by federal constitutional laws, federal laws, acts of the President of the Russian Federation and the Government of the Russian Federation, and is also not entitled to establish restrictions to the exercise of the rights and freedoms of citizens, the rights of non-state commercial and non-profit organizations, except for cases where the possibility of introducing such restrictions is expressly provided for by acts of authorized federal executive bodies constitution Russian Federation, federal constitutional laws, federal laws and issued on the basis of and in pursuance Constitution Russian Federation, federal constitutional laws and federal laws acts of the President of the Russian Federation and the Government of the Russian Federation.

III. Organization of activities

8. The Federal Antimonopoly Service is headed by a head appointed to and dismissed by the Government of the Russian Federation.

The head of the Federal Antimonopoly Service is personally responsible for the fulfillment of the powers assigned to the Service and the implementation of state policy in the established area of activity.

The Head of the Service has deputies who are appointed and dismissed by the Government of the Russian Federation.

10.4. appoints and dismisses employees of the central office of the Service, heads and deputy heads of the territorial bodies of the Service;

10.5. decides according to legislation of the Russian Federation on public service issues related to the passage of the federal public service in the Federal Antimonopoly Service;

10.6. approves the structure and staffing of the central office of the Service within the limits of the payroll fund and the number of employees established by the Government of the Russian Federation, the cost estimate for the maintenance of the central office of the Service within the limits approved for the corresponding period of appropriations provided for in the federal budget;

10.7. approves the number and wage fund of employees of the territorial bodies of the Service within the limits established by the Government of the Russian Federation, as well as the cost estimate for their maintenance within the limits approved for the corresponding period of appropriations provided for in the federal budget;

10.8. submits proposals to the Ministry of Finance of the Russian Federation on the formation of a draft federal budget in terms of financial support activities of the Service;

10.9. submits to the Government of the Russian Federation, in accordance with the established procedure, proposals on the creation, reorganization and liquidation of federal state enterprises and institutions administered by the Service;

10.10. submits, in accordance with the established procedure, employees of the central office of the Service, territorial bodies of the Service and other persons carrying out activities in the established field, for the assignment of honorary titles and state awards of the Russian Federation, Honorary diploma the President of the Russian Federation, to encouragement in the form of announcing the gratitude of the President of the Russian Federation to them.

11. Financing of expenses for the maintenance of the central office of the Federal Antimonopoly Service and its territorial bodies is carried out at the expense of funds provided for in the federal budget.

12. The Federal Antimonopoly Service is legal entity, has a seal with the image of the State Emblem of the Russian Federation and with its name, other seals, stamps and forms of the established form, as well as accounts opened in accordance with the legislation of the Russian Federation.

The Federal Antimonopoly Service has the right to have a heraldic sign - an emblem, a flag and a pennant, established by the Service in agreement with the Heraldic Council under the President of the Russian Federation.

13. Location of the Federal Antimonopoly Service - Moscow.