OREANDA-NEWS. February 06, 2013. The Federal Antimonopoly Service (FAS Russia) reports that FAS completed drafting the Recommendations for providing non-discriminatory access to buying apatite concentrate and published the Recommendations at the official web-site of FAS on 11th December 2012, reported the press-centre of FAS Russia. 

To duly implement the Recommendations by the market participants, FAS gives the following explanations regarding the legal status of the Recommendations for providing non-discriminatory access to buying apatite concentrate.

The right of the antimonopoly authority to give explanations about enforcement of the antimonopoly law is specified in Clause 5 Part 2 Article 23 of No.135-FZ Federal Law “On Protection of Competition” of 26th July 2006 (further on referred to as the Competition Law) and Clause 6.4 of the Regulations on the Federal Antimonopoly Service approved by No.331 Decree of the Government of the Russian Federation of 30th June 2012 (further on referred to as the Regulations).

Possibility of the antimonopoly authority to determine the fair price of the goods circulating on the monopolized markets is specified by Clause 6.1 of No.30 Ruling of the Plenum of the Supreme Arbitration Court of the Russian Federation “On Some Issues Emerging Due to Enforcement of the Antimonopoly Law by Arbitration Courts” of 30th June 2008 as a non-binding measure. In any case, applying such prices, recommended by the antimonopoly body, by a particular economic entity cannot be recognized as a violation of the antimonopoly law.

Under Clause 1 of the Regulations, the Federal Antimonopoly Service is the federal executive body exercising the function of control over compliance with the antimonopoly law.

Under Article 22 of the Competition Law, which is an integral element of the antimonopoly legislation, one of the major functions of the antimonopoly body is to prevent monopolistic activities.

The Recommendations are aimed at preventing violations of the antimonopoly law on the market of apatite concentrate and explain which actions of economic entities will not be considered as violating the antimonopoly law. At the same time, the Recommendations directly state that conduct deviation of an economic entity from the Recommendations by itself is not a violation of the antimonopoly law unless established otherwise by the antimonopoly authority or a Court of Law.

In particular, the Recommendations are drafted to prevent violations of prohibitions set in Sub-Clauses 1), 3), 6), 8) and 9) Clause 1 Article 10 of the Competition Law; and FAS shall consider compliance with the Recommendations as compliance with the prohibitions in the part covered in the Recommendations.

Thus, when the persons, that sell apatite concentrate, follow the Recommendations, it reduces the risks of initiating antimonopoly cases in the part regulated by the Recommendations.

Under Clause 2 Article 9 of No.95-FZ Arbitration Procedural Code of the Russian Federation of 24th July 2002 (further on referred to as the Arbitration Procedural Code), each person that is involved in a case is guaranteed the right to provide evidence to Arbitration Court and the other party to a case. Under Clause 1 Article 64 of the Arbitration Procedural Code, evidence in the case are information about the facts, obtained in accordance with the Code and other federal laws, on the basis of which Arbitration Court shall establish presence of absence of circumstances justifying the requirements and objections of the persons involved in the case as well as other circumstances, that matter for the correct consideration of a case. Under Clause 1 Article 65 of the Arbitration Procedural Code, each person involved in a case must prove the circumstances to which a person refers as the grounds of one’s claims and objections.

Thus, submitting evidence and building-up legal views at Courts is an exclusive competence of the persons involved in a case. Only an interested party, and not FAS, can decide whether to submit the Recommendations to Court of Law.

Under Article 71 of the Arbitration Procedural Code, Arbitration Courts shall evaluate evidence on the basis of internal conviction based on complete and thorough, objective and direct studying of case evidence. Arbitration Courts shall evaluate relevance, admissibility and credibility of each piece of evidence separately, as well as sufficiency and interconnection of evidence in their totality. No pieces of evidence shall have predetermined force for Arbitration Courts.

Thus, expediency of submitting the Recommendations to a Court of Law as evidence is subject to an independent decision of a person, involved in a case, at the person’s discretion.