The companies did not manage to prove that they form a group of persons.
The Arbitration Court of the West-Siberia District supported the decision of Novosibirsk OFAS in a case against a bid-rigging cartel formed by “FITO Company” Ltd. and “Terra” Ltd., upheld the ruling of the 7th Arbitration Appeal Court and dismissed the cassation appeal.
In January 2018, Novosibirsk OFAS found that in 2016-2017 the companies had implemented an anticompetitive agreement, determining and making arrangements in advance who would be the winner and which reduction of the initial maximum contract price could be possible.
The anticompetitive agreement was implemented at 437 auctions for supplying medicine, medical products, food products (post-surgery nutrition) and rendering services for transporting pharmaceuticals for the needs of Meshalkin National Medical Research Centre of the Ministry of Healthcare, while the contracts exceeded 500 million RUB.
The arguments put forward by the respondents to prove their innocence included, in particular, indication that “FITO Company” Ltd. and “Terra” Ltd. cannot be classified as cartel members since they are members of a group of persons and are under control by the same entity and, therefore, must be considered as a single economic entity (Part 7 Article 11 of the Federal Law “On Protection of Competition”).
The Cassation Court confirmed that Novosibirsk OFAS had proved competitive relations between the respondents.
Also a criminal case against Directors of “FITO Company” Ltd. and “Terra” Ltd. is filed to Oktyabrsky District Court in Novosibirsk under Clause “c” Part 2 Article 178 of the Criminal Code of the Russian Federation.
According to Head of FAS Anti-Cartel Department, Andrey Tenishev, No. 16 Explanations of FAS Presidium of 13.03.2019 fully outlines the position of the antimonopoly body on enforcement of Parts 7, 8 Article 11 of the Federal Law “On Protection of Competition” in the course of investigating violations of the antimonopoly cases.
He added that “in this respect FAS has a clear-cut position based on the norms of the current law. Part 8 Article 11 of the Federal Law “On Protection of Competition” specifies a closed list of criteria for classifying economic entities under a controllable group of persons. An extended interpretation of control criteria is unacceptable”.