NON-COMPLIANCE WITH REQUIREMENTS TO CONTENTS OF PREVENTION AND INSTRUCTION VIOLATES THE RIGHTS AND LEGITIMATE INTERESTS OF THE PERSON TO WHOM THEY ARE ISSUED
October 18, 2019, Infralex Partner Athur Rohlin, took part in the scientific and practical conference "Antitrust Disputes: Theory and Practice," organized by the Research Center of Private Law together with the Russian State University of Justice with the participation of representatives of the Supreme Court of the Russian Federation.
Partner of Infralex made a presentation: "Executability of warnings and orders of the antitrust authority as a condition of legality of such acts."
Given that the warning contains an order to perform certain actions that may significantly affect the business activity of the person, it is obvious that before these actions are carried out, the person will want to understand in what his actions the antitrust authority sees the violation and on what evidence it is based.
In this regard, it is important that the antitrust authority disclose in detail in the content of the warning, in which actions there are signs of violation, and on the basis of what evidence the antitrust authority has concluded that the actions in question contain these signs.
However, when issuing warnings and orders, the competition authorities use language that does not meet the requirements of legal certainty, relevance and executability.
In particular, in warnings and regulations:
- General language is used: without reference to specific actions (for example, "prevent actions that may lead to restriction of competition, elimination of competition and violation of antitrust law," create equal conditions for economic entities in the provision of their services, "etc.);
- There are obligations to commit actions that are not related to the circumstances that gave rise to their extradition (for example, regular information on the business of the person);
- Requirements for actions that are of an indefinite nature are established.
- The absence of a detailed justification for the position of the antitrust authority creates legal uncertainty for the economic entity, which in most cases is the main reason for failure to comply with the warning and subsequent lengthy antitrust proceedings. At the same time, the jurisprudence on this issue has not yet developed a unified approach.
"The current situation requires explanations of the Supreme court and formation of a unified court practice based on correct application of the existing norms," - Arthur Rokhlin believes.