Effect Assessment under Russian Enforcement against Anticompetitive Agreements: Decisions of Commercial Courts

Abstract

Effect assessment recently becomes crucial for antitrust enforcement in developed countries. Russian antitrust legislation also allows assessment of pro-efficiency effects and their comparison with anti-competitive effects for several types of the actions that are potentially illegal under the law ‘On protection of competition’. Better implementation of the effects assessment requires special analysis of the recent developments in the enforcement, and that is the objective of this article.
Articles explains common features and differences between the pairs of decision rules such as effect-based vs. object-based enforcement and rule of reason (ROR) vs per se illegality.
We show that effect-based approach in Russian enforcement should improve social welfare. At the same time legislation and motivation of Russian competition authority allow to take into account positive impact of the practice in the fi eld of the effi ciency but does not strictly require this approach. The analysis use dataset of judicial reviews of the infringement decisions of Russian competition authority (FAS) on agreements and concerted  practice during the period 2008–2012 (400 decisions overall). We found that efficiency considerations (taking into account the Article 13 conditions of the law ‘On protection of competition’) rarely determine the outcome of judicial review of infringement decision (only 5 cases from 400). Also, if competition authorities and judges take efficiency considerations into account they do it in arbitrary manner without full quantitative assessment.