ORDER OF FEDERAL ANTIMONOPOLY SERVICE OF THE RUSSIAN FEDERATION

of January 17, 2007 No. 5

About approval of administrative regulations of Federal Antimonopoly Service on execution of the state function on establishment of dominant position of business entity when considering the case about antitrust violation and when implementing the state control of economic concentration

Based on Item 7 of the Procedure for development and approval of administrative regulations of execution of the state functions and administrative regulations of the provision of the state services approved by the order of the Government of the Russian Federation of November 11, 2005 N679 "About Procedure for Development and Approval of Administrative Regulations of Execution of the State Functions and Administrative Regulations of Provision of the State Services" (The Russian Federation Code, 2005, N 47, the Art. 4933), and according to Item 10 of part 1 of article 23 of the Federal Law of July 26, 2006 N135-FZ "About Protection of the Competition" (The Russian Federation Code, 2006, N31 (part 1), 3434) I order to the Art.:

1. Approve the enclosed administrative regulations of Federal Antimonopoly Service on execution of the state function on establishment of dominant position of business entity when considering the case about antitrust violation and when implementing the state control of economic concentration.

2. Direct this order to state registration in the Ministry of Justice of the Russian Federation.

3. I reserve control of execution of this order.

 

Appendix

to the order of Federal Antimonopoly Service of January 17, 2007 No. 5

Administrative regulations of Federal Antimonopoly Service on execution of the state function on establishment of dominant position of business entity when considering the case about antitrust violation and when implementing the state control of economic concentration

I. General provisions

1.1. These Administrative regulations of Federal Antimonopoly Service on execution of the state function on establishment of dominant position of business entity when considering the case about antitrust violation and when implementing the state control of economic concentration (further - Regulations) determine terms and the sequence of actions (ministerial procedures) of Federal Antimonopoly Service (further - FAS Russia), territorial authorities of FAS Russia and their structural divisions, order of interaction between structural divisions of FAS Russia and territorial authorities of FAS Russia, and also order of interaction of FAS Russia and territorial authorities of FAS Russia with other federal executive bodies and other organizations when implementing powers by establishment of dominant position of business entity.

1.2. Execution of the state function on establishment of dominant position of business entity is performed according to:

1.2.1 The constitution of the Russian Federation of December 12, 1993 (The Russian newspaper, 1993, N237; Russian Federation Code, 1996, N 3, Art. 152; 1996, N 7, Art. 676; 2001, N 24, Art. 2421; 2003, N 30, Art. 3051; 2004, N 13, Art. 1110; 2005, N 42, Art. 4212);

1.2.2. The Federal Law of July 26, 2006 N135-FZ "About Protection of the Competition" (The Russian Federation Code, 2006, N31 (1 h), the Art. 3434);

1.2.3. the order of the Government of the Russian Federation of June 30, 2004 N331 "About Approval of Regulations on Federal Antimonopoly Service" (The Russian Federation Code, 2004, N 31, Art. 3259; 2006, N 45, Art. 4706; N 49, of Art. 5223; 2007, N 7, Art. 903);

1.2.4. procedures for carrying out the analysis of competitive situation for the purpose of establishment of dominant position of business entity:

1.2.4.1. the order of Federal Antimonopoly Service of April 25, 2006 N108 "About Approval of the Procedure for Carrying Out the Analysis and Assessment of Condition of Competitive Environment in the Goods Market" registered in the Ministry of Justice of the Russian Federation on July 27, 2006 by N8121 (further - the Procedure for carrying out the analysis) registered in the Ministry of Justice of the Russian Federation on July 27, 2006 of N8121 (The bulletin of regulations of federal executive bodies, 2006, N 32, 2006);

1.2.4.2. the order of Federal Antimonopoly Service of March 10, 2005 N36 "About Approval of Procedure for Determination of Dominant Position of Participants of the Market of Insurance Services" registered in the Ministry of Justice of the Russian Federation on April 7, 2005 of N6467 (The bulletin of regulations of federal executive bodies, N 16, 18.04. 2005);

1.2.4.3. the order of Federal Antimonopoly Service of September 23, 2005 N212 "About Approval of Procedure for Determination of Dominant Position of the Financial Organization for Management of Securities" registered in the Ministry of Justice of the Russian Federation on October 21, 2005 of N7111 (The bulletin of regulations of federal executive bodies, N 44, 31.10.2005);

1.2.4.4. the order of Federal Antimonopoly Service of September 23, 2005 N213 "About Approval of Procedure for Determination of Dominant Position of the Leasing Organizations in the Market of Leasing Services" registered in the Ministry of Justice of the Russian Federation on October 12, 2005 of N7069 (The bulletin of regulations of federal executive bodies, N 42, 17.10. 2005);

1.2.4.5. the order of Federal Antimonopoly Service of October 25, 2005 N247 "About Approval of Procedure for Determination of Dominant Position of the Financial Organizations in the Market of Banking Services" registered in the Ministry of Justice of the Russian Federation on November 23, 2005 of N7183 (The bulletin of regulations of federal executive bodies, N 48,28.11.2005);

1.2.4.6. the order of Federal Antimonopoly Service of May 17, 2006 N129 "About Approval of Procedure for Determination of Dominant Position of Non-state Pension Funds" registered in the Ministry of Justice of the Russian Federation on September 15, 2006 of N8288 (The bulletin of regulations of federal executive bodies, N 40, 02.10. 2006).

1.3. The state function on establishment of dominant position of business entity when considering the case about antitrust violation and when implementing the state control of economic concentration is performed by Federal Antimonopoly Service and its territorial authorities (daleeantimonopolny body).

II. Requirements to procedure for execution of the state function by antimonopoly authority

2.1. Procedure for informing on execution of the state function by antimonopoly authority

2.1.1. Data on the location, phones for reference, the address of the Website of Antimonopoly authority contain in the Appendix N1 to these Regulations, and also on the official Website of FAS Russia (www.fas.gov.ru).

2.1.2. Data on graphics of reception of applications and addresses by Antimonopoly authority contain in the Appendix N2 to these Regulations.

2.1.3. Information on the procedure of execution of the state function by Antimonopoly authority is placed:

on the official Website of FAS Russia;

in mass media;

at information stands of Antimonopoly authority and in distributing information materials (brochures, booklets, etc.).

2.1.4. At the information stand placed in the room (public reception, in case of entrance) Antimonopoly authority, the following information shall contain:

the postal address of Antimonopoly authority, the schedule (mode) of its work, phone numbers on which it is possible to obtain necessary information, the address of the official Website and e-mail of antimonopoly authority;

the list of the documents and data represented by business entities to antimonopoly authority necessary for Antimonopoly authority for execution of the state function;

procedure for receipt of consultations according to the procedure of execution of the state function;

obligations of employees of Antimonopoly authority in case of the response to phone calls, oral and written addresses.

2.2. Procedure for receipt of consultations (certificates) of execution of the state function by antimonopoly authority

2.2.1. Consultations according to the procedure of execution of the state function are provided:

according to written addresses;

by phone;

by e-mail.

2.2.2. Written addresses are considered by Antimonopoly authority in time, not exceeding 30 calendar days from the date of registration of the address.

In case of need request of the additional information the Antimonopoly authority can extend the term of consideration of the address, but no more than for 30 days about what notifies person who addressed to antimonopoly authority. It is necessary to request the additional information within 15 days from the moment of receipt of the address.

2.2.3. In case of consultation by phone employees of Antimonopoly authority provide information on the following questions:

- about the entering numbers at which also the materials which are applied to them are registered in system of clerical work of the statement;

- data on regulatory legal acts based on which antimonopoly authority perform the state function;

- requirements to assurance of documents and data;

- about need of submission of additional documents and data;

- about the location on the official Website of FAS Russia of reference materials concerning execution of the state function.

Consultation on other questions is performed only based on the written address.

2.2.4. In case of consultation on e-mail (in case of its availability) on questions which list is stipulated in Item 2.2.3 presents of Regulations the answer goes to the e-mail address of person who addressed for consultation, in time, not exceeding 7 working days from the moment of receipt of the address.

2.2.5. Information on the procedure of execution of the state function is provided on a grant basis.

2.3. Result of execution of the state function by antimonopoly authority

2.3.1. The decision on establishment of dominant position of business entity when considering the case about antitrust violation is result of execution of the state function and when implementing the state control of economic concentration.

III. Ministerial procedures

3.1. The antimonopoly authority establishes dominant position of business entity in the goods market when considering the case about antitrust violation and when implementing the state control of economic concentration.

3.2. Dominant position the provision of business entity (group of persons) or several business entities (groups of persons) in the market of certain goods giving to such business entity (group of persons) or such business entities (groups of persons) opportunity to exert decisive impact on general terms of the address of goods in the corresponding goods market, and (or) to eliminate from this goods market of other business entities, and (or) to complicate access to this goods market to other business entities is recognized.

3.2.1 The provision of business entity is recognized dominating (except for the financial organization):

a) which share in the market of certain goods exceeds fifty percent if only when considering the case about antitrust violation or when implementing the state control of economic concentration it is not determined that, despite exceeding of the specified size, the provision of business entity in the goods market is not dominating;

b) which share in the market of certain goods constitutes less than fifty percent if the dominant position of such business entity is established by antimonopoly authority proceeding from share of business entity invariable or subject to insignificant changes in the goods market, the relative size of the shares in this goods market belonging to competitors, possibility of access to this goods market of new competitors or proceeding from other criteria characterizing the goods market.

3.2.2. There cannot be acknowledged dominating provision of business entity (except for the financial organization) which share in the market of certain goods does not exceed thirty five percent, except as specified, specified in Item 3.2.3. these Regulations, and also cases established federal законами*.

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