The government's proposed amendments to anti-cartel legislation threaten all entrepreneurs who want to conclude any agreement with a competitor, Vedomosti writes with reference to the bill. As business ombudsman Boris Titov pointed out, the initiative does not distinguish between collusion that violates competition and business as usual. At the same time, the document assumes harsh penalties - for violating the new law, it will be possible to go to prison for up to six years.
The authors of the initiative point out that the damage to the Russian economy from cartels and anti-competitive collusion is about 1.5-2% of the country's GDP every year. The conspiring parties raise prices at auction by up to 30%, in commodity markets by up to 18%, and international cartels by about 23%.
The proposed solution is to tighten anti-cartel legislation. If the amendments are adopted, entrepreneurs can be sent to prison for up to six years if there are signs of an agreement between competitors and income in the amount of over 500 million rubles or damage to organizations, citizens or the state in the amount of over 60 million rubles. Up to four years in prison or a fine of 500 thousand rubles can be obtained for participation in a cartel, "entailing damage in excess of 20 million rubles or generating income from 100 million rubles."
Titov, in a letter to the Speaker of the State Duma Vyacheslav Volodin, indicates that the initiative refers to terms that do not exist in the Criminal Code - for example, the definition of a cartel is taken from the Federal Law “On Protection of Competition”. “This is contrary to the principle of criminal legislation that the corpus delicti should be defined in the Criminal Code. Moreover, the Law on Protection of Competition also lacks a complete and unambiguous definition of a cartel. , - said the business ombudsman.
In addition, the bill proposes to exclude restriction of competition from signs of violation of the law. Thus, the amendments will prohibit not only cartels, but in general any agreements between competitors. “Agreements between competitors do not always really restrict competition or have any negative impact on it”, - emphasizes Titov.
In his letter, the Business Ombudsman proposed, among other things, to separate cartels in commodity markets from bid rigging and to remove cartels in commodity markets from criminal liability; to increase the thresholds of income and damage, which appear in article 178 of the Criminal Code of the Russian Federation; to establish in the legislation an unambiguous and correct concept of a cartel; oblige law enforcement officers to prove the fact of restricting competition in order to declare the transaction criminal.
According to Titov's colleague, Ombudsman for Antimonopoly Law Sergei Kolesnikov, the initiative is incomplete and, with the current wording, will make it possible to jail any entrepreneur for any deal with a partner. “Any agreement can be regarded as a cartel. At the same time, the FAS does not want to prove the negative consequences of restricting competition , - he expressed his opinion.
Kolesnikov clarified that when the amendments are adopted, anyone who offers government agencies a unique product that has no competitors, or those who organize a purchasing or trade cooperative will be able to go to prison. "If an entrepreneur and a cooperative enter into an agreement on the supply of products, this will be regarded as a cartel agreement, and it does not matter that no one has suffered any damage.", - he gave an example.
In September, the heads of the Prosecutor General's Office, the Investigative Committee (IC) of the Russian Federation, the FSB, the Ministry of Internal Affairs and the FCS signed a document changing the rules for investigating cases in relation to business. The amendments should protect the rights of entrepreneurs and prevent disruptions to the work of organizations during the investigation. In particular, the document restricts the seizure of documents and information carriers, and also prescribes not to drag out cases for more than 12 months.
