Protection of competition in the EAEU
Alexey Ivanov spoke at the Tenth meeting of the UNCTAD research partner platform in Geneva.
A panel discussion on the regulation of digital markets for developing economies, consumers and local communities took place on July 10 and included, among other things, presentations of new research projects in this area. Director of the HSE-Skolkovo Institute for Law and Development Alexey Ivanov spoke about the project “Analysis of legislation and Law-Enforcement Practice of the EAEU Member States and the Eurasian Economic Union, on the issues of holding to account and exceptions concerning violation of antitrust laws, reviewing international experience”, recently completed by the Institute.
The study was conducted by the HSE-Skolkovo Institute for Law and Development from September 2018 to May 2019 upon the instructions of the Eurasian Economic Commission.
Within the framework of the project, a comprehensive analysis of the legislation and law-enforcement practice of the Eurasian Economic Union (EAEU) and its member states was carried out on the issue of prosecution for violation of competition rules, as well as exemptions from it. The analysis was carried out for the period from 2015 to 2018, objectively reflecting the contemporary situation.
As part of the analysis of Union law and the Commission's law-enforcement practice, gaps and deficiencies have been identified that can be addressed by amending the agreement and other normative acts. In order to identify the best trends and practices, the experts carried out a detailed analysis of the legislation of 13 jurisdictions worldwide (USA, Japan, Great Britain, Singapore, France, Germany, Italy, Lithuania and the EU, as well as Brazil, China, India and South Africa) regarding procedural and substantive aspects prosecution.
In addition, special attention was paid to the design and application of mitigation programs, since it was deemed important to develop a draft of a similar program for the Eurasian Economic Commission, where at present there is only a general provision in the EAEU Treaty on the possibility of obtaining an exemption for the first applicant, at a time when procedural points are not established. As part of the analysis of foreign experience, we used both the official sources of competition authorities of foreign jurisdictions and the experience of the international platforms of the OECD, UNCTAD and the ISS in order to reflect the accumulated experience and trends in the development of legislation and law-enforcement practice on the issue of accountablity for violations of competition law and exemptions from it. In addition, interviews with representatives of the competition authorities of selected foreign jurisdictions were used.
The result of the study was recommendations for further improvement of Union law on the issue of calling into account violations of competition rules and exemptions from it, which affect the following aspects:
- extension of the time limit for considering a case on the violation of competition rules in cross-border markets from 90 to 120 days (at the same time, a recommendation is made, as law enforcement practice is
developed, that the Commission may initiate a further extension of the time limit for considering a case, citing the general complexity of cross-border cases);
- an increase in the statute of limitations up to 5 years (currently this indicator is 3 years);
- fixing methods of proper notification of a person about law-enforcement actions in Union law;
- expanding the list of extenuating circumstances (adding the existence of a compliance program as a mitigating circumstance);
- the establishment of the rule for transferring the fine to the budget of the Union (currently, the Treaty stipulates that the fine is transferred to the budget of the state in whose territory the violator is registered);
- introduction of a norm on the extraterritorial application of the provisions of the Treaty (at present, the criteria for cross-borderness cover only those violations committed by business entities registered in the territory of the EAEU);
- appeal of decisions of the EEC in a judicial procedure (currently, appeals of decisions of the Eurasian Economic Commission take place at the Council of the EEC, a body that consists of representatives of the governments of the member states of the Union, which, in our opinion, unnecessarily politicises antitrust regulation, which does not meet the objectives of monitoring compliance with the general rules of competition assigned to the Eurasian Economic Commission).
An important part of the study was the development of a draft Procedure for Relieving Administrative Liability and Reducing the Penalty for Violations of the General Rules of Competition in Cross-Border Markets, which will actually become a leniency program on the territory of the Union, as well as a draft model for non-confidentiality. These documents were developed based on the experience of foreign jurisdictions (the mitigation programs of Germany, the European Commission and Japan were taken as the basis).
In addition, additional recommendations are given on the application of this Procedure based on the experience of leading foreign jurisdictions.
Based on the study, a book will be published in the near future.