Top 13 positions of the New Review of the Supreme Court of the Russian Federation on Antimonopoly Legislation Violations

On 25 April 2025, the Presidium of the Supreme Court of the Russian Federation (the “SC”) approved the “Review of judicial practice on the imposition of administrative liability for violations of antimonopoly legislation” (the “Review”) establishing 39 legal positions that eliminate legal uncertainty regarding a number of significant issues as well as allowing for a unified approach to be taken when considering cases involving administrative offences relating to anti-monopoly legislation.

Below are the thirteen most important positions from the SC, which we believe may affect the application of the Federal Law “On Protection of Competition” (the “Competition Law”) and the Code of Administrative Offences of the Russian Federation (the “CoA”).

Abuse of a dominant position

Consideration of cooperative behavior (item 6)

It is unjustified for the antimonopoly authority to attribute a dominant position to only one of the members of a group of economic entities, provided that competition between them is preserved and the behavior of such a participant does not constitute an administrative offence. In the case of collective dominance, liability can only be imputed if there is a joint behavioral model.

The Review describes a case in which the antimonopoly authority did not consider the actions of the other members of the dominant group. The authority did not present any evidence indicating that the members of the dominant group had refused to engage in competitive behavior or that they had acted in concert. Accordingly, the previous decision issued in respect of only one member of the dominant group was cancelled.

We believe that consolidating this approach could have a significant impact on law enforcement practice. One of the most controversial aspects of the FAS of Russia's current practice in applying this institution is the possibility of “individual abuse” as part of collective dominance. According to Plenum No. 2 of the SC dated 4 March 2021, the SC relies on the position that the courts should assess the cumulative influence of all participants taking part in collective dominance on the commodity market.

Consideration of legitimate interests (item 7)

When assessing whether a dominant market player's behavior constitutes abuse, the court must consider that player's legitimate interests. These are interests that any market participant is entitled to pursue. This applies regardless of their position in the commodity market. The court must also consider the obligation to comply with the established requirements for conducting professional activities. Taking action to protect legitimate interests and comply with the established norms should not be regarded as an abuse of a dominant position.

For instance, the Review mentions a case where the weight of transported goods was restricted due to safety regulations. This cannot be considered the imposition of unfavorable contractual terms. It emphasizes the need for a detailed analysis of the actions of a dominant entity to distinguish between abuse and legitimate rights.

The SC's position further expands the scope for substantiating the permissibility of certain commercial practices based on reasonable behavior in the market, the circulation of goods and services, as well as the applicable regulatory, technical or logistical circumstances surrounding the application of such practices.

Proof of restriction of competition (item 9)

If the antimonopoly authority has not identified a restriction of competition (or a real threat of such a restriction), the actions of a company that is not a natural monopoly are covered by Article 14.31(1) of the CoA. This provides for liability in the form of a fixed fine. This applies when the behavior of a business entity affects the others interests but does not and cannot lead to the prevention, restriction or elimination of competition. However, if it is proven that the behavior resulted in, or could have resulted in, such a restriction, then Article 14.31(2) of the CoA applies. This provides for the possibility of imposing a turnover fine.

As described in the Review, the antimonopoly authority did not disprove the company's argument that its actions, recognized as a violation, were intended to generate additional revenue through price increases rather than to restrict competition in the commodity market.

Thus, the SC clarifies the approach to law enforcement with regard to correctly qualifying an administrative offence within the framework of Articles 14.31(1) and 14.31(2) of the CoA, emphasizing to the FAS of Russia and the courts the importance of adhering to evidential standards when classifying actions as more serious offences.

Anti-competitive agreements

Unified strategy (item 10)

If bidders (competitors) realize a unified strategy to achieve a profitable economic result by eliminating competition based on an agreement between them, this may indicate the formation of a cartel.

For example, one case involved bidders who refused to compete with each other, ensuring their victory by reducing the initial maximum price of the contracts by only a small amount. These circumstances suggested that the cartel members were pursuing a unified strategy for their mutual benefit.

The SC emphasizes that a unified strategy may be confirmed by a combination of indirect evidence. While individual facts may not necessarily indicate collusion (for example, the mere affiliation of bidders), the collective behavior of the bidders may suggest a unified strategy indicating the existence of a cartel.

The agreement, rather than the result, is what determines the cartel designation (item 11)

Failure to achieve the planned goal of the cartel agreement, due to cartel members being outbid by a competitor, does not indicate an absence of a prohibited anti-competitive agreement.

In this case, law enforcement practice is reduced to a preventive approach. Threatening the interests of bona fide bidders constitutes an administrative offence. The occurrence of negative consequences is merely an aggravating circumstance.

Within this framework, the SC highlights the absolute prohibition of cartel agreements.

Artificial fragmentation of a deal (item 12)

The artificial fragmentation of a deal by a customer to bypass trade procedures does not constitute evidence of an anti-competitive agreement between the customer and the supplier. To prosecute, the antimonopoly authority must prove that the purchase was split and that all participants in the alleged anti-competitive agreement committed culpable, concerted acts.

While fragmentation can be considered a “red flag”, it is not conclusive proof of collusion. Evidence may include correspondence between the parties or the existence of a “front” member, for example.

Immunity for a controlled group (item 13)

When an organization takes on the functions of a business entity's executive body, it suggests a control structure exists. Accordingly, prohibitions on concluding agreements and the associated administrative penalties for violations do not apply to these entities.

The case law cited in the Review emphasizes that the functions of a legal entity's executive body may be exercised through various legal means and forms.

However, it should be noted that immunity on the grounds of control does not apply to cartel agreements at tenders as stipulated in the current version of the Competition Law.

Merger control

FAS of Russia's approval of transactions related to bankruptcy (item 17)

Concluding a transaction during bankruptcy proceedings does not exempt the parties involved from the obligation to seek prior approval from the antimonopoly authority. The SC has confirmed the FAS of Russia's approach to resolving such situations, stating that the mere absence of a reference to a requirement to obtain approval for a transaction in the sector-specific legislative acts does not mean that such an obligation does not exist.

Thus, the Review indicates that there are no exceptions to economic concentration transactions other than those expressly provided for by law. This approach is quite typical of the FAS of Russia.

It should be noted that the acquisition of assets under bankruptcy procedures is a fairly common practice in Russia. When structuring a transaction using bankruptcy law mechanisms, it is advisable to analyze whether it meets the criteria and thresholds set out in the Competition Law.

Submission of information to the antimonopoly authority

The systematization of data and the limits of obligations to provide responses to the FAS of Russia's requests (item 19)

A legal entity's fulfilment of its duty to provide information requested by the antimonopoly authority does not presuppose action on its part in requesting information from third parties nor in generalizing, systematizing or presenting information in forms not envisaged by current legal acts.

In practice, organizations often receive information requests that imply a response prepared in accordance with the format of an antimonopoly authority.

In this case, the SC does not offer a radically different interpretation of the statutory provisions. This position could potentially reduce the administrative burden on businesses. At the same time, whether or not to exercise the right to provide information “as is” depends on the circumstances in which a particular request is received and the tactics employed when interacting with the antimonopoly authority.

The issues of liability

A fine has priority over a transfer to the federal budget (item 31)

An order to transfer income received as a result of a violation of antimonopoly legislation to the federal budget shall be issued only when it is not possible to calculate an administrative fine based on the offender's proceeds from the sale of goods, work or services on the market on which the administrative offence was committed. In the event of the issuance of an order to transfer funds to the budget, the FAS of Russia is obliged to prove the impossibility of calculating a fine.

Therefore, if the fine amount can be calculated, the order to transfer income does not apply and the offender is held administratively liable. In practice, priority is now given to fines, providing legal certainty for both courts and businesses. Previously, the outcome of such cases could result in the liquidation of the business, as the company could be left practically without funds when income was transferred to the federal budget.

Mitigating circumstances (item 32)

When sentencing, the court may recognize mitigating circumstances that are not listed in the CoA.

In the example considered in the Review, such circumstances were deemed to be the sanitary and epidemiological measures imposed in connection with the new coronavirus (Covid-19) pandemic, which created significant obstacles conducting business during the restrictions’ implementation.

Mitigating circumstances may also include “pressure” from regional authorities and financial difficulties due to sanctions, among other things. Previously, the antimonopoly authority's administrative practice commonly adhered to a closed list of mitigating circumstances due to the wording of item 3 of Note 1 to Article 14.32 of the CoA. In disputes with the FAS of Russia, it is important to provide the court with substantial evidence of mitigating circumstances, since this can result in a significantly reduced fine or even the avoidance of disqualification.

Continuing administrative offence (item 34)

An administrative offence that exceeds one year in duration cannot be considered an aggravating circumstance in relation to administrative liability if the timeframe of the commodity market research is shorter than the period during which the economic entity is accused of committing the offence.

If the market study does not cover the entire period of the infringement, the FAS of Russia’s conclusions on the negative impact on competition may be incomplete. Without data for the entire period, it cannot be concluded that the infringement consistently restricted competition. The SC emphasizes the importance of the FAS of Russia conducting a study and including a report on the analysis of the state of competition for a period exceeding one year in the case file in order to apply the aggravating circumstance.

Fine reduction (item 39)

A 50% reduction on a fine is possible in cases where administrative offences are detected under the implementation of any type of state control measures or supervision. Fine reduction is also possible in cases of antitrust law violations.

This position in the Review is a very important step that practically eliminates the risk of the CoA being misinterpreted when it comes to reducing fines. However, if the payment deadline is missed due to procedural delays, the deadline for paying the fine under preferential terms will be reinstated.