The Federal Antimonopoly Service of the Russian Federation (the FAS of Russia) has issued a clarification of the procedure for implementing compliance systems. This will help business to build an efficient mechanism for preventing antimonopoly risks, which includes drawing up internal regulations correctly. However, the key issue that remains open is whether the regulator will take response measures only based on the fact that a company’s compliance documents contain provisions that contradict the legislation.
In March 2021 Federal Law No. 135-FZ “On protecting competition” dated 26 July 2006 (the “Law on Protecting Competition” or “the Law”) was supplemented with article 9.1 (Introduced by Federal Law No. 33-FZ dated 1 March 2020). The specified article regulates the procedure for business entities to implement a system for ensuring internal compliance with the requirements of antimonopoly legislation, i.e. an internal compliance system.
In order to ensure the uniform application of the antimonopoly legislation when the regulator is checking compliance systems of business entities, the FAS of Russia has published Clarification No. 20 “On the system for ensuring internal compliance with the requirements of the antimonopoly legislation” dated 2 July 2021 (the “Clarification”). This document is advisory in nature and should help business to organise an efficient mechanism to warn off risks.
According to the Clarification, organising a compliance system is a right rather than an obligation of business entities. However, the Law on Protecting Competition sets out only general criteria that a company’s internal regulations for implementing such a system should meet. Companies may, taking into account the specifics of their activity, establish in their documents other provisions for which article 9.1 of the law does not provide, as long as such provisions do not contradict antimonopoly legislation.
The FAS of Russia examines the internal regulations and provides a positive or a negative opinion as to whether they comply with the legislation. The regulator also checks to what extent the company’s documents meet the requirements both of article 9.1 of the Law on Protecting Competition, and of antimonopoly legislation in general. A procedure is also provided for whereby an internal regulation is submitted for re-examination if it did not pass the first examination. The supervisory authority is authorised to re-examine changes only with respect to the matters that previously served as grounds for a negative opinion to be provided.
If an examination identifies provisions contradicting legislation on competition in an internal document in effect as at the date when it was filed for examination, this is not a ground for response measures to be taken. A ground for such measures to be taken is in place only if it has been identified that the activities of a business entity have signs of an antimonopoly violation resulting from the business entity observing such provisions of the document.
How the recommendations of the FAS of Russia will be implemented in practice, and whether the presence in an internal document of provisions which contradict the law can actually not be classified as a ground for antimonopoly measures to be taken are issues that still remain open.
Recommendations regarding individual powers of the authorities also deserve specific attention. Thus, the FAS of Russia may not provide instructions obliging business to implement an antimonopoly compliance system. At the same time, as part of the state oversight of economic concentration before the FAS of Russia takes a decision, a business entity may at its own initiative undertake obligations to implement a system. In this case, the performance of such obligations may be a part of the regulator’s instructions.
Moreover, it is pointed out that whether a compliance system has been organised is not an independent matter that the FAS of Russia examines as part of state oversight. At the same time, when a case is being examined a business entity may voluntarily provide documents and information that a risk prevention mechanism has been created and implemented. The information in such documents alone cannot lead to a conclusion that there are or there are no signs of a violation of antimonopoly legislation.
Meanwhile, proceeding on the basis of the authority’s existing practice of examining antimonopoly cases, it is impossible at present to exactly determine how the recommendations will be implemented, in particular, whether the FAS of Russia will subsequently impose an obligation to provide the specified documents and information and whether they will serve as a ground for a conclusion that there are or there are no signs of unlawful conduct.
The Clarification also provides that when an issue of a violation of the antimonopoly legislation is examined, measures taken to organise the risk prevention system may be taken into account. In view of the above, it is pointed out that if a positive opinion has been issued, this rules out the business entity being recognised as a violator if it acted in accordance with agreed compliance rules. In addition, if such business entity has no internal document and if the FAS of Russia has issued a positive opinion, this does not deprive the business entity of the right to provide, during the examination of a case, evidence that it has done its best to comply with the legislation.
In general, the publication of the Clarification is an important and significant event. It allows us to understand the position of the antimonopoly authority on how its individual powers should be exercised in the context of business entities organising compliance. However, how certain provisions of this document will be implemented is still to be seen in practice.
Source: Competition and Law