Concerted practice enforcement in Russia: How judicial review shapes the standards of evidence and number of enforcement targets

Abstract

A judicial review of the infringement decisions of the competition authority substantially affects the standard of evidence in competition enforcement as well as the structure of cases that the competition authority takes. Enforcement against concerted practice in Russia represents a case-study of interaction between commercial courts of first instance, the Highest Court, the competition authority as enforcer, market participants and the legislator to influence the standards of liability under investigation of concerted practice. We examine the judicial review of infringement decisions on concerted practice and track the evolution of legal definition and sufficiency of evidence in such cases. We show, first, that in Russian enforcement, the ability of the Highest Court to influence the criteria of first instance courts is limited (in contrast to the ability of the first instance court to influence the strategy of enforcement by the competition authority). Second, the increase in the burden of proof motivates the competition authority to refrain from an investigation of concerted practice, in accordance with the prediction of the model of the selection of enforcement target by reputation-maximizing authority.

The Practice of Efficiency Defense in Antitrust Cases: A Comparison of BRICS and European Cases

“…Response of the Competition authority It claimed that the products sold were of higher quality than the ones produced by competitors and that the exclusive agreements were necessary to protect specific Given the likelihood of judicial review of antitrust cases in Russia, it is often the case that the best companies' strategy is to take efficiencies arguments to courts directly, instead of presenting them in full during the antitrust investigation by Russian competition authority (FAS). For the extent of judicial review in antitrust cases in Russia see, e.g., Avdasheva et al 2020. investments with the dealers such as training of sales force and mechanics and advertising products. The authority obtained evidence showing that the training of the sales force and mechanics was general and took place with dealers not under exclusive agreements.…”

Deceptive evidence: The experience of product market definition for the purpose of competition law enforcement

“…220), there were only 57.6% antitrust infringement cases in Russia (concerning abuse of dominance 13 ) that have been reviewed in commercial courts during 2008-2015 where relevant market analysis has been undertaken (either for basic or formal market delineation; . The poor quality of economic analysis and, particularly, errors in market definition are often the reasons for overturning the antitrust decisions in court (Avdasheva and Golovanova, 2020;Avdasheva and Korneeva, 2018). Despite some drawbacks related to the use of survey data (Farrell and Shapiro, 2007) the hypothetical monopolist test is still considered as the priority way to define a relevant market (Pavlova and Shastitko, 2019;.…”