The spread of coronavirus globally poses new challenges before FAS: how to prevent violation of competition law in such turbulent market conditions?
Some urgent questions answered below:
1. Will any inspections be held by the regulator during the pandemic?
Following the Prime Minister’s order, as of as of March 18, 2020, inspections of structural subdivisions of the FAS Russia are temporarily ceased until April 10, 2020. This limitation only deals with scheduled inspections, while those unscheduled, including competition law dawn-raids and checks in the field of state defense procurement will still be conducted. Consequently, the abovementioned is applicable to planned inspections only, while all the other inspections remain.
The status of already scheduled but not yet performed inspections remains undetermined at the moment.
2. How will the commissions treat current cases of competition law violations or administrative offenses?
The commissions are required to ensure the possibility of remote process or adjournment of proceedings and/or administrative offenses. All parties involved in the proceedings will be notified about necessary facilities to participate remotely by using software, allowing online video communication.
However, given that the current legislation does not recognize the pandemic as a reason to postpone/prolong proceedings, the commissions will need to decide each case based on its merits, in timeframes required for timely completion.
3. Does suspension of inspections and / or delay in reviewing antitrust cases imply a more relaxed approach by the FAS Russia regarding the behavior of business entities and signal "lower" thresholds for recognizing behavior as unfair (violating antitrust requirements)?
No, it doesn’t. On the contrary, in a pandemic, the antitrust authority will strengthen control over circulation of goods (works, services) that have the greatest social significance given the circumstances.
4. Which industries will take up the regulator’s attention in the pandemic?
Given the current circumstances and market practice, FAS Russia is paying the closest attention to pharmaceuticals and medical device manufacturers, food manufacturers, oil production / refining enterprises, as well as companies associated with the circulation of these goods (retail chains, pharmacies, etc.).
In addition, attempts at unfair competition practices aimed at misleading consumers regarding the consumer properties of goods (works, services) in relation to the coronavirus infection will be prosecuted. This is, first and foremost, misleading advertising of medicines and supplements, methods for diagnosing or treating the coronavirus COVID-19 and other similar actions.
5. How is the antimonopoly authority currently operating?
The submission of documents to the FAS Russia is temporarily carried out as follows:
documents must be dropped in the mailbox or left on the table by the door of office number . Information about the incoming matter number is available on +74997552323, extension 088-835 or 088-790.
Some FAS Russia employees will switch to the working remotely, but this is unlikely to be the heads of structural divisions or their deputies.
6. How does the antitrust authority qualify a coronavirus infection pandemic?
FAS Russia’s regional bodies have been instructed to qualify the pandemic as a force majeure event. , This position of the antimonopoly authority should be taken into account when considering complaints, cases of administrative offenses, applications for inclusion on the register of unscrupulous suppliers and conducting inspections.
In addition, by virtue of the provisions of the Law on the contract system in the field of public procurement 44-FZ a pandemic as a force majeure event that is considered to be the basis for the procurement of certain goods (works, services) from a single supplier.
Please note that state and / or municipal customers are entitled to purchase from a single supplier in connection with a pandemic only if there is a causal relationship between the subject of procurement and actions to counteract the spread of the coronavirus infection.
This position of the antimonopoly authority is most relevant for manufacturers of medical equipment / products and drugs.
Despite the fact that the FAS Russia did not give a direct explanation regarding procurements carried out within the framework of the Law on Procurement of Certain Types of Legal Entities 223-FЗ, it should be borne in mind that this law
(Part 5.1 of Article 3) allows for procurement due to force majeure circumstances without their prior inclusion in the procurement plan.
