Elena Sokolovskaya,

Chief Expert of Competition and Law journal

Access to information about decisions of Russian government agencies concerning the activities of market participants is being increasingly restricted.  This is linked to the risk of additional sanctions. Where, then, should one look for accurate information about the regulator's position? The obvious answer is in judicial decisions and in the overviews of them that the Russian Supreme Court (the “Supreme Court”) publishes.  In particular, one can refer to the recent Overview regarding administrative liability for antitrust violations, which sets out important conclusions of the Court.  Let us examine two of them: about an order to transfer to the state budget income that has been received illegally and about the institution of collective dominance.

In June of this year, the Russian President signed Federal Law No. 182-FZ dated 24 June 2025, which has caused alarm for business. The provisions have been excluded from Federal Law No. 135-FZ dated 26 July 2006 “On protecting competition” (the “Competition Law”) that oblige the antitrust authority to make publicly available the decisions and orders it is applying, among other things. There is a high likelihood that the database of decisions and non-regulatory legal instruments of Russia's Federal Antimonopoly Service (the “FAS of Russia”) will cease to be updated.

At the same time, the approaches of courts do not always ensure that there is uniformity in the understanding of a particular controversial issue, while they do not always provide a complete picture of how the law is enforced and a clear answer to a legal question.

Therefore, the value of the Supreme Court's overviews is noticeably increasing.

In April, the Overview of judicial practice relating to administrative liability being imposed for violations of antitrust legislation (approved by the Presidium of the Supreme Court on 25 April 2025, the “Overview”) was published. It contains 39 legal positions on issues relating to how administrative offences are classified, proceedings in administrative cases and how the limitation period is calculated for liability to be imposed, as well as how the amount of a fine is calculated.

Let us examine what we view as two of the most significant approaches that could affect the antitrust authority's law enforcement practice.

For information
The Supreme Court is empowered to publish overviews with a view to ensuring that legislation is uniformly applied based on the study and consolidation of judicial practice (article 2 of Federal Constitutional Law No. 3-FKZ “On the Supreme Court of the Russian Federation” dated 5 February 2014).

Fine (,) not (,) prescribe

Issuing orders that illegally obtained income must be transferred to the state budget as a result of a violation of antitrust legislation is a trend in the law enforcement practice of the FAS of Russia.

For example, the antitrust agency, following the outcome of the consideration of a case on an abuse of a dominant position (a violation of article 10(1)(1) of the Competition Law), obliged a company to transfer to the state budget RUB 3 billion of illegally obtained income. This was because, in April and May 2024, the company had increased the cost of mobile communication services for more than 30 million subscribers by an average of 8% (the FAS of Russia’s Order dated 9 October 2024 in case No. 11/01/10-11/2024). In July of this year, the court upheld this position (the Decision of the Commercial Court for the City of Moscow dated 11 July 2025 in case No. A40-258323/24-139-1893).

The antitrust authority has issued similar orders to pharmaceutical companies for a violation of the ban on unfair competition relating to the use of results of intellectual activity provided for in article 14.5 of the Competition Law.

Nonetheless, the issue of whether an order takes precedence over a turnover-based fine (or vice versa) currently remains live. According to clause 31 of the Overview, an order to transfer to the federal budget income received as a result of a violation of antitrust legislation is issued only in the event that it is impossible to calculate an administrative fine based on the amount of the offender’s revenue from the sale of the goods (work, services) on the market of which the offence was committed.

Also on the subject
E. Sokolovskaya When fines create no fear, or a special measure for offenders // Competition and Law. 2024. No. 6. pp. 4-7.

Such an approach also previously existed in administrative and judicial decisions (the FAS of Russia’s Letter No. IА/46433/16 dated 8 July 2016). But it applied only to cases when a person was held administratively liable for monopolistic activity in accordance with articles 14.31 and 14.32 of the Russian Code of Administrative Offences (the “Code of Administrative Offences”). Now, based on the position stated in the Overview, the antitrust agency is obliged to prove that it is impossible to calculate a turnover-based fine when it issues an order to transfer funds to the state budget, including for committing an act of unfair competition.

It is worth noting that, recently, one could only conjecture in what situation the antitrust authority imposes an administrative fine and in what situation it issues an order. Perhaps, when making such decisions, it just chose the most effective measure to take action against the specific offender. At the same time, market participants are still not entirely clear as to the logic of such antimonopoly response measures and the limits within which it is permissible to apply them.

Thanks to clause 31 of the Overview, the procedure of how the supervisory authority will act is clearer and follows a sequence. However, it is still rather difficult to predict how the agency will behave in practice.

Collective dominance, or one is not a warrior in the field

The institution of collective dominance emerged in Russia in 2006, when the Competition Law was passed. Over the time the concept has existed, many controversial and debatable issues have taken shape. The key one of these is the imputation of unlawful actions to only one participant, rather than to the entire group enjoying collective dominance. The antitrust agency recognises this possibility. Moreover, in general, it is one independent business entity from the established “collective” that is subject to sanctions.

The approach that has become a reference point in this matter is set out in the Resolution of the Presidium of the Russian Supreme Commercial Court dated 25 May 2010 in case No. A70-9090/15-2008 of OJSC TNK-BP Holding. According to this judicial decision, in disputes concerning an abuse of collective dominance, it is not necessary to prove that the participants are interconnected.

It is no exaggeration that issuing orders to transfer illegally obtained income to the state budget is a trend

Year after year, we have observed how the supervisory authority, when establishing the fact that a company has abused a dominant position, classified only its actions as an abuse, and did not assess as an abuse those of all participants in the “collective”.

In 2021, an attempt was made to change the approach. Back then, the Supreme Court stated that the opportunity should still be assessed of all participants in collective dominance to influence the commodity market in aggregate (clause 9 of Resolution No. 2 of the Plenum of the Supreme Court dated 4 March 2021 “On certain issues arising in connection with courts applying antitrust legislation”). Nonetheless, the regulator's position remains unchanged.

It would be good to believe that a line will be drawn under this history by the position set out in clause 6 of the Overview: the conduct of one of the participants of the collective of business entities that are dominant on the market does not form the body of an administrative offence under the relevant part of article 14.31 of the Code of Administrative Offences when competition is maintained between those entities.

It is noted in the Overview that the subject matter of proof in such cases includes issues how the actions of a member of the “collective” correlates with the conduct of all other members of it owing to the “cumulative influence of all entities enjoying collective dominance on the conditions for goods to circulate on the commodity market” in order to identify whether the fact of the joint abuse of a dominant position is present or absent. If there is no such joint pattern of conduct, any of these entities is deprived of the opportunity to individually exert a decisive influence on the general conditions for goods to circulate on the relevant commodity market, i.e. to occupy a dominant position. This means one can rule out its conduct being classified as the conduct of an entity that has committed a breach of antitrust legislation and an administrative offence.

We will keep tabs on the subsequent practice of the antitrust authority and hope that the regulator will adjust the simplified approach to considering this category of cases.

The Overview will obviously contribute to the Code of Administrative Offences and the Competition Law being uniformly applied. However, it also contains a number of debatable approaches that could radically change law enforcement practice.