The antimonopoly law. Endorsement in antimonopoly bodies.
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“A basis of the antimonopoly law of the Russian Federation is Federal Law of July, 26, 2006 №135-FL “About competition protection” (hereinafter referred to as FL). The present Federal law covers relations connected with competition protection, including the prevention and suppression of monopolistic activity and unfair competition.
Along with some restriction of freedom of business activity and freedom of the contract for business entities occupying a leading position in the market and protection of interests of consumers of the goods and services from exclusive power or unconscientiousness of manufacturers in the form of overpricing, imposing of unfavorable contractual terms, poor quality production, FL also introduces a control in the form of the preliminary consent of antimonopoly body - Federal antimonopoly service (further - FAS), for settlement of some actions and transactions.
Necessity to get the consent in FAS arises in cases:
- establishing of the commercial organization if total cost of assets of founders according to last balance exceeds 2 000 000 minimum wage rates;
- merge and joining of the commercial organizations if total cost of their assets according to last balance exceeds 2 000 000 minimum wage rates;
- at acquisition by a person (group of persons) of more than 20 % of a voting share package of the joint-stock company, the given requirement does not cover the founders when establishing a company;
- at acquisition by a person (group of persons) of a share in a company with limited liability under condition if such person (group of persons) acquires the right to dispose more than one third of shares in the authorised capital of the given company, this requirement does not cover company incorporators when establishing a company;
- other transactions with stocks and shares according to item 28 - 29 FL;
- at acquisition by a person (group of persons) of the rights allowing to determine the conditions of business doing by business entity or to carry out functions of its executive body.
- at owing, using or possessing by one business entity (group of persons) of the basic production funds or intangible assets of other business entity if balance cost of the property making a subject of transaction exceeds 10 % of book cost of basic production funds and intangible assets of the business entity alienating or transferring the property.
Preliminary consent of FAS for such transaction is required in cases:
- if total cost of assets according to last balance of persons buying and alienating the property exceeds 3 billion roubles.
- if at least one of persons is enlisted in the Register of the business entities having a share in the market of certain goods more than 35 %.
- if the purchaser is a group of persons supervising activity of the specified business entity.
Corresponding persons should present to antimonopoly body applications and notices on transactions, other actions subject to the state control, and also following documents and information:
- notarially certified copies of founding documents for the applicant - the legal person or passport data for the applicant – an individual;
- the documents defining a subject and content of the transaction, other action, subject to the state control;
- information on kinds of activity carried out by the applicant within two years preceding to the day of representation of the application or notice, or during term of business doing if it makes less than two years, and also copies of the documents confirming the right on all kinds of business doing if according to the legislation of the Russian Federation special permissions are required for this;
- information on names of kinds of production, on amount of production produced and realized by the applicant within two years, preceding to the day of representation of the application or notice, or during term of business doing if it is less than two years, indicating the codes of product range;
- information available for the applicant on main kinds of activity of the persons specified in articles 27-30 of the Law on competition, names of kinds of production, amount of production produced and realized by such persons within two years, preceding to the day of representation of the application or the notice, or during the term of business doing if it makes less than two years, indicating the codes of product range; or the statement in writing that given information is not available for the applicant;
- accounting balance as of last accounting date for preceding to the date of representation of the application or the notice;
- financial and economic and other reporting represented to the Central bank of the Russian Federation and to regulating federal bodies of executive authorities in the market of financial services;
- the list of the commercial organizations, more than of five percent of which shares (stocks) the applicant disposes on any basis, or the statement in writing that the applicant does not dispose shares (stocks) of the commercial organizations;
- the list of the persons entering in one group with the applicant, indicating the reasons on which the persons are included in this group;
- the list of the persons entering in one group with other persons specified in articles 27-30 of Law on a competition, indicating the reasons on which such persons are included in this group, or the statement in writing that such information is not available for the applicant.
FAS has to consider the application and documents within 30 days from the date of their reception and inform the applicant in writing on the decision
- about satisfaction of the application,
- about prolongation of term of consideration of the application in connection with necessity of reception of the additional information or in case the transaction, other action, declared in the application are subject to the preliminary coordination according to the Federal law of April, 29, 2008 N 57-FZ "About a procedure of foreign investments into business entities being of strategic importance for guarantee the defense of the country and safety of the state",
- about refusal in satisfaction of the application.
The transactions specified in articles 28 and 29 of the present Federal law and carried out without preliminary consent of antimonopoly body, admit void in judicial order under the claim of antimonopoly body if such transactions resulted in competition restriction or can lead to it, including as a result the appearance or strengthening of leading position.
Our company renders professional services in representation of interests of clients in FAS for getting all necessary endorsements.
The Antimonopoly law services proceed with assistance of the Expert Council of our Corporation.
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