OREANDA-NEWS. On 17th April 2008, the 9th Arbitration Appeal Court allowed the appeal of the Federal Antimonopoly Service (FAS Russia) and revoked the ruling of the Moscow Arbitration Court on the appeal of the Federal Agency of Communication (Rossvyaz) against the FAS Russia's decision, reported the press-centre of FAS Russia.

On 15th August 2008, FAS Russia recognized that the actions of Rossvyaz on including the provisions to the Bid Evaluation Criteria, under which the bidders that have licenses for offering communication services on the territory covered by the tender, gain absolute advantages, violated Article 17 of the Federal Law "On Protection of Competition" because they restrict possibilities of the operators, that do not have licenses for operating in the lot territory, for entering the market of mobile wireless telephony in the lot territory and restrict competition on the market of the services of mobile wireless telephony.

The case was initiated upon a petition of "VympelCom" OJSC. The Federal Service for Supervising Mass Communication, Communications and Protection of Cultural Heritage (Rossvyazokhrancultura) was brought into the proceedings as person possessing information on the circumstances of the case, being processed by the FAS Russia's Commission.

Rossvyaz violated the law by approving the conditions of the tenders for the right to obtain licenses to offer services of mobile wireless telephony in the Russian Far East and Siberia.

According to the information published on the official web-site of Rossvyaz, the Agency announced open biddings for the right to obtain licenses to offer services of mobile wireless telephony in the following constituent territories of the Russian Federation: the Republics of Buryatia and Sakha (Yakutia), the Primorsky, Kamzhatka and Khabarovsk territories (krai), the Irkutsk, Chita, Magadan, Sakhalin and Amur regions, the Jewish Autonomous region, the Ust-Ordynsky, Buryatsky, Aginsky Buryatsky, Koryaksky and Chukotsky Autonomous national areas (okrug), with the starting date for offering the services of mobile wireless telephony no later than 2 years after the decision on granting licenses for radio-frequency band was made.

In accordance with the published tender documentation, the bids must be evaluated under the score system, taking into consideration specific criteria for evaluating the bidders. Notably, the specified bid evaluation criteria gave obvious advantage to the operators that have licenses for the tender territories and unreasonably restricted access to the bidding for other operators that do not have licenses covering the territories in question.

The above follows from the fact that the main bid evaluation criteria was whether a bidder had (at the time when the Agency made a decision to organize a tender) licenses for offering communication services in the lot territory.

The bid evaluation terms ensured that the highest scores, and, consequently, tender licenses would be gained by the operators that already had the licenses covering the tender territories.

Having considered the case, FAS Russia recognized that Rossvyaz had violated the antimonopoly legislation and flied a lawsuit to the Arbitration Court on recognizing the bidding invalid. Moreover, FAS Russia sent recommendations to Rossvyazokhrancultura regarding the conditions specified in the tender documentation taking into account the outcome of the case.

Rossvyaz disagreed with the FAS Russia's decision and appealed.

On 16th January 2008 the Moscow Arbitration Court pronounced the FAS Russia's decision of 15th August 2007 invalid, specifying that FAS Russia had given wrong assessment of the tender documentation and that FAS Russia had failed to establish the bidders for whom Rossvyaz had created favourable conditions.

FAS Russia lodged an appeal against the ruling of the Moscow Arbitration Court to the 9th Arbitration Appeal Court. The Court of the Appeal Instance allowed the appeal of FAS Russia.

Therefore, the Court fully confirmed validity of the RAS Russia's decision regarding Rossvyaz.