Order
Of The Ministry For Anti-Monopoly Policy Of The Russian Federation
No. 276 Of August 13, 1999
On The Approval Of The Regulations
On The Procedure For Filing Petitions And Notices
With The Anti-Monopoly Bodies
In Accordance With The Requirements Of Articles 17
And 18 Of The Law
Of The Russian Federation On Competition And
On Restricting Monopoly Activity On Commodity Markets
(With The Amendments And Additions Of October 31, 2000)
To improve the implementation of the legislation on competition and on restricting monopoly activity on the commodity markets and in connection with the coming into force of the Federal Law on Introducing Amendments and Addenda into the Law of the Russian Federation on Competition and on Restricting Monopoly Activity on the Commodity Markets, I hereby order:
1. To approve the enclosed Regulations on the Order of Filing Petitions and Notices with Anti-Monopoly Bodies in Conformity with the Requirements of Articles 17 and 18 of the Law of the Russian Federation on Competition and on Restricting Monopoly Activity on the Commodity Markets.
2. To declare invalid the Regulations on
the Procedure for Filing Petitions and Notices with Anti-Monopoly Bodies in
Conformity with the Requirements of Articles 17 and 18 of the Law of the Russian
Federation on Competition and on Restricting the Monopoly Activity on the Commodity
Markets which was approved by Order No.
145 of November 13, 1995 of the State Committee for Anti-Monopoly Policy of
Russia and registered with the Ministry of Justice of the Russian Federation
on November 24, 1995, Registration No. 981 (in the wording of Order of
the Ministry for Anti-Monopoly Policy of Russia No. 71 of March 11, 1999 and
registered with the Ministry of Justice of the Russian Federation, Registration
No. 1761)
3. The present Order shall be directed to the Ministry of Justice of the Russian
Federation for registration in the established manner.
4. I hereby retain the control over the execution of the present Order.
Chairman of the Committee |
L.A. Bochin |
Registered by the Ministry of Justice of the Russian Federation on December
14, 1999.
Registration No. 2001
Introduce amendments and addenda to the Regulations on the Order of Filing Petitions and Notices with Anti-Monopoly Bodies in Conformity with the Requirements of Articles 17 and 18 of the Law of the RSFSR on Competition and on Restricting Monopoly Activity on the Commodity Markets and give it the following wording:
Regulations
on the Procedure for Filing Petitions and Notices with
Anti-Monopoly Bodies in Accordance with the Requirements on
Articles 17 and 18 of the Law of the RSFSR on Competition and of
Restricting the Monopoly Activity on the Commodity Markets
(Approved by Order of
the Ministry for Anti-Monopoly
Policy of the Russian Federation No. 276 of August 13, 1999)
(with the Amendments and Additions of October 31, 2000)
Appendix 1. The? List? of? Information to Be Presented by the Applicant to the Anti-Monopoly Bodies for Considering Petitions and Notices pursuant to Articles 17 and 18 of the Law of the RSFSR onCompetition and on Restricting Monopoly Activity on the Commodity Markets
Appendix 2. Form No. 1. Information? on Volumes of the Output and Supply of the Kinds of Products (Works,Services)
In accordance with Order of the Government of the Russian Federation No. 756-r of June 8, 1998, the bodies of the State Committee for Anti-Monopoly Policy of Russia have been advised to send for examination by the federal bodies of executive power documents submitted by economic subjects in order to confirm positive results of their actions for commodity markets in the Russian Federation.
1. General Provisions
1.1. The present Regulation was drafted on the grounds of the Law of
the RSFSR on Competition and on Restricting Monopoly Activity on the Commodity
Markets (Gazette of the Congress of People' Deputies of the RSFSR and of the
Supreme Soviet of the RSFSR, No. 16, 1991, Item 499; Gazette of the Congress
of People's Deputies of the Russian Federation and of the Supreme Soviet of
the Russian Federation, No. 32, 1992, Item 1882; No. 34, 1992, Item 1966; Collected
Legislation of the Russian Federation, No. 22, 1995, Item 1977) (hereinafter
referred to as the Law) and shall lay down the procedure for filing petitions
and notices with the Ministry for Anti-Monopoly Policy of Russia (the MAP of
Russia) or with a territorial department of the MAP of Russia (hereinafter
referred to as the anti-monopoly bodies) in conformity with the requirements
of Articles
17 and 18 of
the Law, when performing the following contracts (actions):
- the setting up, merger and affiliation of commercial organizations;
- the liquidation and the division (spin-off) of state-run and municipal unitary
enterprises;
- the acquisition by a person (by a group of persons) of shares (participation
shares) with the right of vote in the authorized capital of an economic company,
when such a person (such a group of persons) acquires the right to dispose
of more than 20 per cent of the said shares (participation shares);
- the receipt into the ownership or into the use by an economic subject (a
group of persons) of fixed production assets or of intangible assets of another
economic subject;
- the acquisition by a person (by a group of persons) of the rights, enabling
them to define the terms for the economic subject to perform his business activity
or for his executive body to discharge its functions;
- the natural person's taking part in the executive bodies and in boards of
directors (supervisory boards) of two or more economic subjects.
1.2. For the purposes of the present Regulations, the following concepts shall
be applied:
The person - a natural person or a legal entity.
The legal entity - an organization in conformity with the definition provided in Article 48 of the Civil Code of the Russian Federation (Part One), including a foreign legal entity (Article 2 of the Civil Code of the Russian Federation).
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 amended paragraph 4 of Item 1.2 of these Regulations
See
the previous text of the paragraph
The natural person (the citizen) - a participant in the relations regulated
by the civil legislation - a citizen of the Russian Federation, a foreign citizen,
or a stateless person.
The economic subjects - Russian and foreign commercial organizations and their associations (unions or amalgamations), nonprofit organizations, except for those not engaged in business activities, including agricultural consumer cooperatives, and also individual businessmen (Article 4 of the Law).
A group of persons - a group of legal and/or natural persons with respect
to whom one or several of the following conditions are observed:
- the person or several persons jointly enjoy the right as a result of an agreement
(of coordinated actions), directly or indirectly to dispose of (including on
the ground of purchase and sale contracts, on trusted management, on joint
operations, on commission, or of other deals) more than 50 per cent of the
total number of votes falling onto the shares (the investments, the participation
shares) which comprise the authorized (added up) capital of the legal entity.
In so doing indirect disposal of the legal entity's votes shall be interpreted
as the possibility to actually dispose of them through third persons with respect
to whom the former person enjoys the above-mentioned right or power;
- the person or several persons have obtained an ability through an agreement
or otherwise to determine decisions made by an other person or persons, including
these to define the terms for performing business activity of an other person
or persons, or to discharge the functions of the other person's or persons'
executive body on the basis of a contract;
- the person enjoys the right to appoint a sole executive body and/or more
than 50 per cent of members of the joint executive body of the legal entity,
and/or with advice of the person elected over 50 per cent of members of the
board of directors (of the supervisory council) or of another joint executive
body of the legal entity;
- a natural person acts as the sole executive body of the legal entity;
- one and the same natural persons, their spouses, parents, children, brothers,
sisters and/or the person who proposed by the same legal entity make up more
than 50 per cent of members of the joint executive body and/or of the board
directors (the supervisory council) or another joint executive body of two
or more legal entities, or at the proposal of the same persons elected over
50 per cent of members of the board of directors (the supervisory council)
or another joint executive body of two or more legal entities;
- one and the same natural persons, their spouses, parents, children, brothers,
sisters have the right to either independently or through representatives (agents)
dispose of a total of more than 50 per cent of votes that fall to shares (deposits,
participation shares) making up the authorized (added-up) capital in each of
the two or more legal entities;
- natural persons and/or legal entities have the right to either independently
or through representatives (agents) dispose of a total of more than 50 per
cent of votes that fall to shares (deposits, participation shares) making up
the authorized (added-up) capital of one legal entity and at the same time,
such natural persons, their spouses, parents, children, brothers, sisters,
and (or) persons proposed by the same legal entity make up more than 50 per
cent of members of the joint executive body and (or) the board of directors
(of the supervisory council) or another joint executive body of another legal
entity;
- the legal entities are members of the same financial and industrial group;
- the natural persons are spouses, parents and children, brothers and (or)
sisters.
Affiliated persons are natural persons or legal entities who are able to influence
activities of natural persons and (or) legal entities engaged in business operations.
Affiliated persons of a legal entity are:
a member of the board of directors (the supervisory council) or another joint
management body, a member of its joint executive body as well as a person acting
as its sole executive body;
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 amended paragraph 19 of Item 1.2 of these Regulations
See
the previous text of the paragraph
the persons belonging to the same group of persons to which the same legal
entity belongs;
a person who has the right to dispose of more than 20 per cent of the overall
number of votes that fall to shares (deposits, participation shares) making
up the authorized (added-up) capital of the legal entity in question;
a legal entity in which the person in question has the right to dispose of
more than 20 per cent of the overall number of votes that fall to shares (deposits,
participation shares) making up the authorized (added-up) capital of the legal
entity in question;
if a legal entity is a member of a finanical-industrial group, then its affiliated
persons shall also include members of boards of directors (the supervisory
councils) or other joint management bodies, joint executive bodies of members
of a finanical-industrial group as well as persons acting as sole executive
bodies of a finanicalindustrial group;
Affiliated persons of a natural person are:
persons who belong to the same group of persons to which belongs the natural
person in question;
a legal entity in which the natural person in question has the right to dispose
of more than 20 per cent of the overall number of votes that fall to shares
(deposits, participation shares) making up the authorized (added-up) capital
of the legal entity in question;
Direct control is the ability of a legal entity or a natural person to determine decisions taken by a legal entity by performing one or several of the following actions:
- disposing of, including jointly with other persons, as a result of an agreement
(coordinated actions) more than 50 per cent of the total number of votes falling
onto the shares (the investments, the participation shares) that comprise the
authorized (added up) capital of the legal entity;
- obtaining the right to specify, including jointly with other persons, the terms
for performing the legal entity's business activity, or to discharge functions
of its executive body;
- obtaining the right to appoint more than 50 per cent of members of the legal
entity's executive body and/or its board of directors (the supervisory council);
- participating (jointly with the same natural persons) in the executive body
and (or) in the board of directors (in the supervisory council) of two or more
legal entities, while representing more than 50 per cent of their management
body members.
Indirect control is the ability of a legal or natural person to determine
decisions taken by the legal entity through third persons with respect to whom
the former enjoys one or several of the following rights or powers:
- to dispose of, including jointly with other persons, as a result of an agreement
(of agreed actions) more than 50 per cent of the total number of votes falling
onto the shares (the investments, the participation shares) which comprise
the legal entity's authorized (added up) capital;
- to determine, including jointly with other persons, the terms for performing
the business activity of the legal entity or to discharge functions of its
executive body;
- to appoint more than 50 per cent of the members of the legal entity's joint
executive body and (or) of its board of directors (of the supervisory council);
- to take part jointly with the same natural persons in the joint executive
body and (or) on the board of directors (the supervisory council) of two or
more legal entities while representing more than 50 per cent of their management
body members.
A reorganization of a legal entity is a merger, affiliation, division or spin-off
(Article
57 of the Civil Code of the Russian Federation).
In the case of a merger of legal entities, the rights and duties of each of
them shall pass to the newly arising legal entity in accordance with the transfer
document (Item
1, Article 58 of the Civil Code of the Russian Federation).
In the case of an affiliation of a legal entity in the form of another legal
entity joining the former, the former shall be held as reorganized from the
time an entry on terminating its activity is made in the Uniform State Register
of Legal Entities (Item
4, Article 57 of the Civil Code of the Russian Federation). In the case
of one legal entity being affiliated to another legal entity, with the rights
and duties of the affiliated legal entity passing to the latter legal person
in conformity with the transfer deed (Item
2, Article 58 of the Civil Code of the Russian Federation).
In the case of a division of a legal person, his rights and duties shall pass
to the newly emerging legal entities in conformity with the division balance
sheet (Item
3, Article 58 of the Civil Code of the Russian Federation).
In the case of a separation from a legal entity one or several legal entities,
the rights and duties of the reorganized legal entity shall be passed to each
of them in conformity with the division balance sheet (Item
4, Article 57 of the Civil Code of the Russian Federation).
The liquidation of a legal entity entails its termination without transferring
its rights and duties by the right of succession to other persons (Item
1, Article 61 of the Civil Code of the Russian Federation). The acquisition
of shares (participation shares) in the authorized capital of economic companies
is the purchase, as well as the acquisition of any other ability to exercise,
independently or through representatives, the rights of vote embodied in these
shares (participation shares) on the ground of entrusted management contracts,
joint operations or the delegation contract, or on the ground of other deals.
The sum of assets of legal entities by the last quarterly balance sheet is
defined on the basis of Form
No. 1 by the ACMD before
filing a petition or a notice (less losses). For foreign legal entities this
shall be the sum of assets (the common assets).
The index of balance cost of a legal entity's intangible assets is defined
by the last quarterly balance sheet (Form
No. 1 by the ACMD)
before filing a petition or a notice. For foreign legal persons, this shall
be the sum of intangible assets;
The index of the balance cost of fixed production assets is defined by the
last quarterly balance (Form
No. 1 by the ACMD)
before filing a petition or notice by way of adding up indices of fixed assets
and construction in progress. For foreign legal entities, this shall be the
summary cost of fixed assets.
The Register of
Economic Subjects Holding More than a 35 Per Cent Share of the Market of a
Certain Commodity shall be defined in the meaning laid down by Decision of
the Government of the Russian Federation No. 154 of February 19, 1996 on the
Register of Economic Subjects Holding Over 35 Per Cent Share of the Market
of a Certain Commodity.
The following may act as interested parties:
the applicants - the persons (bodies) that take decisions on the setting up,
reorganization or liquidation of commercial organizations and of their associations
(including the founders (participants) of a commercial or of a non-profit organization
that undergo a reorganization or already reorganized, and the newly created
legal entities), the persons who acquire shares (the participation shares),
fixed production assets or intangible assets or the rights, enabling them to
determine for an economic
subject terms of his business activity or to discharge the functions of
his executive body; the persons taking part in the executive bodies, in the
boards of directors (supervisory boards), and also their authorized representatives;
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 amended paragraph 49 of Item 1.2 of these Regulations
See
the previous text of the paragraph
the other interested parties - the seller, the lessor, the legal entities or
natural persons, who together with the acquirer of the shares (the participation
shares), of fixed production assets, of intangible assets or of the corresponding
rights, make up a group of persons, and also an economic company or an economic
subject, with respect to whom are performed deals or actions listed in Article
17 and in Article
18 of the Law, as well as the legal entities and natural persons, included,
alongside with such an economic company or an economic subject, into a group
of persons;
the third parties - the natural and legal persons who have sufficient interest
in the results of the deals or actions, such as: the federal bodies of executive
power, the bodies of executive power of the subjects of the Russian Federation,
the local self-government bodies, the buyers of goods, the suppliers, the business
rivals, and also members of management bodies and of administrations and authorized
representatives of the workers collectives of interested parties.
2. The Anti-Monopoly Bodies' State Control over the Setting Up, Reorganization and Liquidation of Commercial Organizations and of Their Associations Stipulated by Article 17 of the Law
2.1. A preliminary consent of the anti-monopoly bodies shall be required:
- in the setting up, the merger and the affiliation of commercial organizations
(their unions or associations) if there are no less than two commercial organizations
among members of the associations;
- in the merger and the affiliation of commercial organizations, if the overall
balance cost of their assets exceeds 100,000 minimum
wages salaries;
- in the liquidation and in the division (spin-off) of state run and municipal
unitary enterprises, the size of the assets whose balance sheet exceeds 50,000
minimum wages salaries if this results in the emergence of an economic subject
whose share of the market of the corresponding commodity exceeds 35 per cent,
except for the cases when liquidation takes place by decision of arbitration
court which has come into legal force.
2.2. The subsequent notification of the anti-monopoly bodies shall be required:
- upon the merger of commercial organizations, if the sum of their assets as
per the balance sheet exceeds 50,000 minimum
wages/salaries, within 15 days after the date of the state registration
of the newly emerged legal entity;
- upon the affiliation of commercial organizations, if the sum of their assets
as per the balance sheet exceeds 50,000 of the minimum
wages salaries, within 15 days after the date of making an entry on the
termination of the activity of the affiliated legal entity into the State Register;
- upon setting up a commercial organization, if the summary cost of the founders'
assets as per the balance sheet exceeds 100,000 minimum
wages salaries, within 15 days after the date of the state registration
of the newly emerged legal entity.
2.3. In the cases stipulated by Item
2.2 of the present Regulations, the applicant shall have the right, before
taking the decision on the setting up the merger or the affiliation, to request
the consent of the anti-monopoly bodies.
3. The Anti-Monopoly Bodies' State Control in the Acquisition of the Shares (the Participation Shares) in the Authorized Capital of Commercial Organizations and in the Other Cases, Stipulated by Article 18 of the Law
3.1. A preliminary consent to make deals stipulated in Item
1, Article 18 of the Law shall be required in the following cases:
3.1.1. In
every case of the acquisition of the shares (the participation shares) with
the right of vote in the authorized capital of an economic company (i.e., of
the possibility to exercise the rights of vote embodied in these shares (participation
shares) on the ground of purchase and sale contracts, of entrusted management,
of delegation, or of other kind of deals), if:
a) the legal or natural
person, who is a participant in a group
of persons, or several persons - participants in one group of persons intend
to acquire any number of shares (participation shares) with the right of vote
in the authorized capital of an economic company, and, while doing so:
- the acquirer shall receive, along with the shares (the participation shares)
already at his disposal or at the disposal of the persons-participants in the
group of persons, the right to dispose of more than 20 per cent of the shares
(of participation shares) with the right to vote in such an economic company
and
- the sum of cost of assets by the balances of all the legal entities incorporated
into the group of persons, including the acquirer of the shares (of the participation
shares) himself, and of the cost of the assets by the balance sheet of the
economic company, the voting shares (participation shares) in the whose authorized
capital are acquired, exceeds in the aggregate 100,000 minimum wages salaries;
b) the legal or natural person who is a non-participant in the group of persons
intends to acquire any number of voting shares (participation shares) in the
authorized capital of an economic company, and in doing so:
- the acquirer shall receive together with the shares (participation shares)
already at his disposal the right to dispose of more than 20 per cent of voting
shares (participation shares) in the said economic company and - the sum of
cost of assets by the balances of the acquirer of shares (participation shares)
and of the economic company, the voting shares (participation shares) in whose
authorized capital are acquired, exceeds 100,000 minimum
wages salaries.
If the acquirer is a natural
person who is not a member of the group of persons, a preliminary petition
should be filed if the cost of assets as per the balance sheet of the economic
company, the voting shares (participation shares) in whose authorized capital
are acquired, exceeds 100,000 minimum
wages salaries.
If the economic company is placing additional voting shares (participation
shares) solely among the persons who are the shareholders (participants) of
the given economic company without changing their share in the authorized capital,
no coordination with the antimonopoly bodies is required.
3.1.2. When receiving fixed assets or intangible assets into the ownership
or into the use (including on the basis of purchase and sale contracts, on
rent, lease contracts, etc.) if:
a) the economic
subject,
who is a member of the group of persons, or several persons, being members of a single group of persons,
intend to receive more than 10 per cent of the balance cost of fixed production
assets or intangible assets of another economic subject (including in aggregate
with those they already hold)
and the sum of value of assets as per the balances of all the economic subjects,
being members of the group of persons together with the recipient of fixed
production assets or intangible assets, including the recipient of this property
himself, and of the value of assets by the balance sheet of the economic subject,
whose fixed production assets or intangible assets are passed into the ownership
or into the use, exceeds in total 100,000 minimum
wages salaries;
b) the economic subject who is not a member of the group of persons, intends
to obtain more than 10 per cent of the balance cost of fixed production assets
and of intangible assets of another economic subject (including in aggregate
with those it already holds)
and the sum of value of assets as per the balance sheet of the economic subject,
who receives fixed production assets or intangible assets of another economic
subject, and of the value of assets as per the balance sheet of the economic
subject whose fixed assets or intangible assets are passed into ownership or
into use, exceeds 100,000 minimum wages salaries.
If the recipient of fixed production assets or of intangible assets is a natural
person according to Item
3.1.2 who is neither an economic subject nor a member of the group
of persons, no preliminary consent of the anti-monopoly bodies to such
a deal is required.
3.1.3. In applying other methods to acquire rights (including by a contact
of delegation, of joint activity or of management, or in another similar way)
which make it possible to determine the terms for the economic subject's performing
his business activity or to discharge functions of his executive body (hereinafter
referred to as the rights), if:
a) the legal entity or the natural person who is a member of the group of persons,
or several persons who are members of one group of persons, intend to jointly
acquire the corresponding rights with respect to the economic
subjects, and
- the sum of the value of assets on the balances of all the legal entities
who make up the group of persons, including the acquirer of the rights himself,
and of the value of assets on the balance sheet of the economic subject with
respect to whom such rights shall be received, is in general more than 100,000
minimum wages salaries;
b) the legal entity or the natural person who is not a member of the group
of persons, intends to acquire the corresponding rights with respect to the
economic subject, and
- the sum of value of assets on the balance sheet of the acquirer of the rights
and of the value of assets by the balance sheet of the economic subject, with
respect to whom such rights will be acquired, exceeds 100,000 minimum wages
salaries. If the acquirer of the rights is a natural
person, the preliminary consent shall be necessary if the value of the
assets on the balance sheet of the economic subject, with respect to whom the
above-said rights have been acquired, exceeds 100,000 minimum
wages salaries.
3.1.4. A preliminary consent to perform deals listed in Items
3.1.1, 3.1.2 and 3.1.3,
regardless of the overall balance value of assets, shall be obtained if:
- the acquirer of voting shares (participation shares) in the authorized capital
of the economic company, of fixed production assets or intangible assets, or
corresponding rights is an economic subject entered into the Register of
Economic Subjects Holding More than a 35 Per Cent Share of the Market of a
Certain Commodity (hereinafter referred to as the Register), or a legal entity
or a natural person who is a member of the group of persons among whose members
the economic subject is entered into the Register;
- an economic company whose voting shares (participation shares) in the authorized
capital are being acquired or an economic
subject whose fixed production assets or intangible assets are passed into
the ownership or into use, or an economic subject with respect to whom the
corresponding rights are being acquired have been entered into the Register.
3.2. The anti-monopoly bodies shall be notified within 15 days as stipulated
by Article
18 of the Law:
- after the performance of deals listed in Item 1 of Article
18 of the Law, if the sum of value of assets on the balances of the persons,
specified in Items
3.1.1, 3.1.2 and 3.1.3 is
within the bracket of from 50,000 to 100,000 minimum wages salaries, inclusive;
- after the natural person's incorporation (election) to executive bodies,
boards of directors (supervisory boards) of two or more economic subjects,
whose summary cost of the assets on the balances exceeds 50,000 minimum wages
salaries;
- after the natural person's incorporation (election) to executive bodies,
boards of directors (supervisory boards) of the economic subjects entered into
the Register by
the same commodity group, or entered into the Register by the commodity groups
of different stages of the same production and sales process, regardless of
the total balance value of their assets.
3.3. In cases envisaged in Item
3.2 of the present Regulations, the applicant shall have the right to seek
the preliminary consent of the anti-monopoly bodies to perform the said actions.
4. Persons Filing a Petition or a Notice
4.1. A petition to set up, reorganize or liquidate commercial organizations and their associations shall be filed with the antimonopoly bodies by the person (the body), which is to take a corresponding decision.
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 amended paragraph 2 of Item 4.1 of these Regulations
See
the previous text of the paragraph
If the corresponding decision is taken jointly by several persons (bodies),
these persons (organizations) shall jointly file the petition with the anti-monopoly
bodies; the petition shall name the person they have authorized to deal with
the anti-monopoly bodies or authorized by one of them on instruction of persons
(bodies) which participated in taking the decision.
4.2. The notice on setting up commercial organizations shall be filed with
the anti-monopoly bodies by founders of the commercial organization, or by
one of the founders on their instruction.
The notice on the merger of commercial organizations shall be filed with the
anti-monopoly bodies by a commercial organization created as a result of the
merger.
The notice on the affiliation of commercial organizations shall be filed with
the anti-monopoly bodies by a commercial organization which has affiliated
the other commercial organization.
4.3. The petition (notice) on performance of deals by legal entities and/or natural persons, as well as the notice on the natural person's taking part in executive bodies or in boards of directors (supervisory boards) of two or more economic subjects, shall be filed with the anti-monopoly bodies by the person acquiring shares (participation shares), fixed production assets, or intangible assets, or rights enabling him to determine the terms for the economic subject's performing his business activity, or by the person, taking part in executive bodies or in boards of directors (in supervisory boards).
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 amended paragraphs 2-3 of Item 4.3 of these Regulations
See
the previous text of the paragraphs
If several persons, members of a group
of persons, come out as the party to the deal which receives fixed production
assets or intangible assets of an economic subject, the petition or the notice
shall be filed jointly by these persons or by one of them on the orders of
all recipients.
If several persons, members of a group of persons come out as the party to
the deal which receives the right to dispose of the votes embodied in the shares
(participation shares), or the right to determine the terms for the economic
subject's performance of his business activity, the petition (the notice) shall
be filed with the anti-monopoly bodies jointly by these persons, or by one
of them on the orders of all the recipients of the corresponding right.
4.4. The persons who in conformity with Items
4.1, 4.2 and 4.3,
are obliged or have the right to file with the anti-monopoly bodies the petitions
(notices) stipulated by Articles
17 and 18 of
the Law, may appoint an authorized representative (an agent).
The authorized representative (the agent) acting in the relationship with the
anti-monopoly bodies on behalf and in the interest of such persons, should
submit to the anti-monopoly bodies proper proof of his powers (written proof
of his powers should be enclosed with the petition (the notice)).
4.5. The appointment of an authorized representative (of an agent) shall not
absolve the above-said persons of their duties and the responsibility stipulated
by the anti-monopoly legislation.
5. The Content and Terms for Filing and Examination of Petitions and Notices as Stipulated by Articles 17 and 18 of the Law
5.1. The application on the petition or on the notice shall be drafted in a
free form and submitted to the anti-monopoly bodies to the name of the Chairman
of the MAP of Russia (the head of the territorial board of the MAP of Russia)
in conformity with the procedure laid down by Item
6 of the present Regulations. The petition or the notice shall specify
the name of an action or a deal and the number of the acquired shares (participation
shares) shall be specified, as well as the composition of received property
or the concrete right enabling the determination the terms for the economic
subject's performing his business activity.
5.2. When considering the petition or the notice, the antimonopoly bodies
shall have the right to ask the applicant for any information indicated in
Appendix 1, the List of Information, Presented by the Applicant to the Anti-Monopoly
Bodies for Considering Petitions and Notices in Conformity with Articles
17 and 18 of
the Law of the RSFSR on Competition and on Restricting Monopoly Activity on
Commodity Markets.
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 supplemented Item 5.2 of these Regulations with the following
paragraph
Documents on a paper carrier shall be appended by the applicant to his application
for a request or a notice as per Appendix
1 to the present Regulations, in keeping with the legally significant actions
and the character of the application (request or notice), and also information
may be presented on a magnetic carrier as per Appendix
2 to the present Regulations;
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 amended paragraph 1 of Item 5.3 of these Regulations
See
the previous text of the paragraph
5.3. When filing a petition or a notice, the applicant shall have the right
to present to the anti-monopoly bodies the information (the documents) indicated
in Section
1, Appendix 1 and Appendix
2 to the present Regulations. When examining the petition or the notice
the antimonopoly bodies shall have the right also to ask that the applicant
presents the information (the documents) indicated in Section
2,
Appendix 1, within the term they fix themselves (but less than 30 days
after receiving the petition or the notice).
The terms for presenting the additional information shall be fixed by the anti-monopoly
bodies based on the essence of examining the petition or the notice and from
the content of the inquired information.
Failure to submit on time the documents and the information requested by the
anti-monopoly bodies as specified by Appendix
1 to the present Regulations shall entail the responsibility stipulated
by Article
23 (paragraph five) and by Item
3 (paragraph three) of Article 24 of the Law.
5.4. When filing a petition or a notice, the applicant shall have the right
to independently (in addition to the information (documents) specified in Section
1, Appendix 1 direct to the anti-monopoly bodies any information which,
in the applicant's opinion, is of importance for taking the decision within
the fixed term.
If requested by the anti-monopoly bodies legal entities and natural persons
who are not the applicants of a concrete petition (notice) shall be obliged,
in conformity with Article
14 of the Law, to present any available information necessary to fulfil
the tasks imposed upon the anti-monopoly bodies. Failure to submit information
as requested by the anti-monopoly bodies within a fixed term in conformity
with Article 14 of the Law shall entail the responsibility stipulated by Item
3 (paragraph two), Article 24 of the Law.
5.5. A commercial secret contained in the information shall not serve as a basis not to present it to the anti-monopoly bodies; in so doing the applicants and other interested parties shall provide an exhaustive list of data which are commercial secrets (with the exception of those documents and data which cannot be a commercial secret under the legislation of the Russian Federation).
The fact that the information (the documents) are situated outside of the
territory of the Russian Federation may not be a basis for refusing to present
it to the anti-monopoly bodies or for failure to comply with the term fixed
for presenting it.
5.6. If the information and the documents requested by the antimonopoly bodies
in conformity with the list provided in Section
1, Appendix No. 1 to the present Regulations or the information, additionally
requested by the anti-monopoly bodies in conformity with Section
2, Appendix 1 to the present Regulations, is not available for the applicant,
the latter shall be obliged, when handing in the petition or the application
on the notice to state that such information is not available to him, to indicate
the reasons why it is not available to him, and to name the sources where the
documents (the information) may be obtained.
The petition or the notice shall be regarded as incomplete until all the documents
or information are supplied according to the list of Section
1, Appendix 1, or until the reasons are reported to explain why the applicant
is not able to obtain the above-said information, and the former shall not
be accepted for consideration by the antimonopoly bodies.
5.7. An amendment of facts contained in the petition (the notice) and in the
enclosed documents (information) of importance for taking the decision shall
be immediately brought by the applicant to the knowledge of the anti-monopoly
bodies in writing. In such cases, the date when the anti-monopoly bodies receive
the petition or the notice shall be held on the date when they receive the
information about the changes. Failure to inform the anti-monopoly bodies about
the changes which have taken place may be viewed as the presentation of unauthentic
information and may entail the responsibility stipulated by Article
23 of the Law.
5.8. The following shall be seen as the failure to present the petitions and
the notices required in conformity with Articles
17 and 18 of
the Law:
- the submission of petitions and notices to the anti-monopoly bodies in violation
of the procedure established for approval as stipulated by Item
2 and Article 17 and Item
1 and Article 18 of the Law and terms fixed by Item
4 and Article 17 and Item
5 and Article 18 of the Law;
- the evasion of the handing in to the anti-monopoly bodies of the petitions,
as well as of the notices, within the terms laid down by Articles 17 and 18
of the Law;
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 amended paragraph 4 of Item 5.8 of these Regulations
See
the previous text of the paragraph
- the direction to corresponding anti-monopoly bodies of the petitions or of
the notices containing no information and no documents required by the list
given in Section
1, Appendix 1 to the present Regulations, without indicating any reasons
why the applicant was not able to receive this information and these documents;
- the direction by the applicant of the petitions and notices to the territorial
boards of the MAP of Russia which have no powers to consider them in conformity
with Section
6 of the present Regulations.
The non-presentation of the petitions and notices envisaged by Articles
17 and 18 of
the Law shall entail the responsibility stipulated by Articles
23 and 24 of
the Law.
5.9. Regarded as the date of receiving the petition or the notice shall be
the date when the authorized anti-monopoly bodies receive the corresponding
application and all the necessary documents, as well as the information envisaged
by Section
1, Appendix 1 to the present Regulations, or the information about the
reasons explaining the impossibility for the applicant to receive above-said
documents or information.
When the MAP of Russia or an authorized territorial board of the MAP of Russia
receives the petitions or the notices which contain no information and documents
according to the list of Section 1, Appendix 1 to the present Regulations without
indicating any reasons why they were not presented, within the 10 days term
from the date of their receipt, the anti-monopoly bodies shall inform the applicants
in writing that their petition (notice) has not been accepted for consideration.
5.10. The notice on the creation of a commercial organization may be filed
simultaneously with the petition to defer the issue of the registration certificate
if at the notice submission time the registration certificate had not been
issued to the applicant by the state registration body.
5.11. The notice on the membership of a natural person in executive bodies,
boards of directors (supervisory boards) of two or more economic subjects may
be filed simultaneously with the petition to defer the submission of copies
of documents confirming his joining (election to) the executive bodies, boards
of directors (supervisory boards) of the economic subject, the former giving
the reason for failure to submit a copy of the document.
5.12. The period of time specified in Items
2 and 5,
Article 17 and in Items
3 and 6,
Article 18 of the Law, and concerned with the term fixed for considering the
petitions (the notices) shall start on the next day after the anti-monopoly
bodies receive all the documents they have requested according to the List
of Information to be presented by the applicant to the anti-monopoly bodies
for examining petitions and notices in conformity with Articles
17 and 18 of
the Law of the RSFSR on Competition and on Restricting Monopoly Activity on
the Commodity Markets (Appendix
1).
The period of time specified in Items
2 and 5
of Article 17 and in Items
3 and 6
of Article 18 of the Law and concerned with the term fixed for considering
the petitions (notices) shall end after the expiry of the 30th or the 45th
day from the start of the term fixed for considering the petitions (notices)
after the expiry of the hour when, in conformity with established rules, the
working day ends in the anti-monopoly body.
5.13. The period of time indicated in Item
4 of Article 17 of the Law shall start on the next day after the day of
the state registration of the newly emerged legal entities (the date of making
an entry into the Uniform State Register of Legal Entities on the termination
of operations of the affiliated legal entity).
The period of time indicated in Item
4 of Article 17 of the Law shall end after the expiry of the 15th day after
the start of the term.
If the notice is presented to the anti-monopoly body authorized to consider
the notice by a special messenger, the term shall expire in the hour when,
in conformity with established rules the working day ends in the anti-monopoly
body.
The written notices handed in to the communications organizations before midnight
of the last day of the fixed term shall be regarded as presented on time.
5.14. The period of time indicated in Item
5 of Article 18 of the Law shall start on the next day after the date of
making the deal or of the natural person's joining (being elected to) the said
bodies or boards.
The period of time laid down by Item 5, Article 18 of the Law shall end after
the expiry of the 15th day from the start of the term.
If the notice is delivered to the anti-monopoly bodies by a special messenger,
the term shall expire on the hour when in conformity with the established rules
the working day ends in the anti-monopoly bodies.
The written notices handed in to the communications organizations before midnight
of the last day of the term shall be regarded as presented on time.
5.15. If the last day of the term defined by the period of time falls onto
a day off, the date of the end of the term shall be defined in conformity with
Article 193 of the Civil Code of the Russian Federation (Part One).
6. The Order for Filing Petitions and Notices with the AntiMonopoly Bodies and for the Latter to Consider Them The petitions or the notices stipulated by Articles 17 and 18 of the Law together with the information and documents indicated in Section 1, Appendix 1 to the present Regulations shall be handed in by the applicants:
6.1. In conformity with Article 17 of the Law:
6.1.1. upon the creation, merger and affiliation of associations of commercial
organizations (the unions or amalgamations):
- to the corresponding territorial board at the seat of the newly emerging
union (association), or at the seat of the reorganized union (association),
in case of another union (association) joining it, if commercial organizations
located in no more than 5 subjects of the Russian Federation are included into
the newly established association or in the reorganized association;
- to the MAP of Russia, if commercial organizations, located in more than 5
subjects of the Russian Federation, or if foreign legal entities are among
such members of the newly set up association or in the reorganized association;
6.1.2. upon the setting up of commercial organizations:
- to the corresponding territorial board at the seat of the newly set up legal
entity if the sum of the cost of assets by the founders' balances lies within
the bracket from 100,000 minimum
salaries up to 5 million minimum salaries, inclusive;
- to the MAP of Russia if the sum of the cost of assets as per the commercial
organizations' balances exceeds 5 million minimum
salaries;
6.1.3. upon the merger and the affiliation of organizations:
- to the corresponding territorial board at the seat of the newly emerging
legal entity, at the seat of the reorganized legal entity, in case of the affiliation
to it of another legal entity, if the sum of the assets by the balances of
the commercial organizations lies within the bracket from 50,000 minimum salaries
up to 5 million minimum salaries inclusive;
- to the MAP of Russia if the sum of the cost of the assets as per the balances
of the commercial organizations exceeds 5 million minimum salaries;
6.1.4. upon the liquidation and in the division (in the spin-off) of state-run
and municipal unitary enterprises:
- to the corresponding territorial board at the seat of the legal entity subject
to liquidation or to reorganization in the form of division or spin-off whatever
the size of their assets.
6.2. In conformity with Article
18 of the Law:
6.2.1. upon the acquisition of voting shares (participation shares) in the
authorized capital of the economic company or in receipt of fixed production
assets or intangible assets, or in the acquisition of rights to make it possible
to determine the terms for the economic
subject's performing his business activity or to discharge functions of
his executive body (hereinafter referred to as the rights):
- to the territorial board of the MAP of Russia at the seat of the economic
company whose shares (participation shares) in the authorized capital are acquired
or at the place of location of the economic subject receiving into ownership
or into use fixed production assets or intangible assets, or at the seat of
the economic subject with respect to which the corresponding rights are being
acquired, if:
a) the sum of the cost of assets as per the balance sheet of the acquirer
of shares (participation shares) (of the corresponding rights or of fixed production
assets), as per the balances of all the legal entities included in the group
of persons together with the acquirer, and of the cost of assets as per the
balance sheet of the legal entity whose voting shares (participation shares)
(whose fixed production assets or intangible assets or corresponding rights
with respect to whom) are being acquired, shall lie within the bracket of 50,000
minimum salaries up to 20 million minimum salaries inclusive;
b) or if the sum of assets as per the balances of the persons enumerated in
Item (a) does not exceed 100,000 minimum sizes of wage/salary and the acquirer
of shares (participation shares), of fixed production assets or of intangible
assets, or corresponding rights is an economic
subject entered into the Register,
or a natural (a legal entity) person, included into the group of persons with
the similar economic subject;
c) or if the sum of the assets as per the balances of the persons enumerated
in Subitem (a) of Item 6.2.1, does not exceed 100,000 minimum
sizes of wage/salary and the economic subject whose voting shares (participation
shares) or fixed production assets and intangible assets are acquired, or with
respect to whom the corresponding rights are acquired is an economic subject
entered into the Register;
- to the MAP of Russia if the sum of the cost of assets by the balance sheet
of the acquirer of shares (participation shares) (of corresponding rights or
fixed production assets or intangible assets), by the balances of all the legal
persons, included into the group
of persons together with the acquirer, and of the cost of assets by the
balance sheet of the legal person whose voting shares (participation shares)
(whose fixed production assets or intangible assets, or with respect to whom
corresponding rights) are acquired, exceeds 20 million minimum
sizes of wage/salary.
6.2.2. upon the natural person's participating in the executive bodies or in
the boards of directors (supervisory boards) of two and more economic subjects:
- to the territorial board by the place of location of any one of those economic
subjects, in whose executive body or board of directors (supervisory council)
the natural
person participates, if the sum of the assets by the balances of the legal
persons, in whose executive bodies, boards of directors (supervisory boards)
one and the same natural person takes part, lies within the bracket of from
50,000 minimum sizes of wage/salary up to 15 million minimum
sizes of wage/salary inclusive;
- to the MAP of Russia - in all the other cases.
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 amended paragraph 1 of Item 6.3 of these Regulations
See
the previous text of the paragraph
6.3. When receiving a petition or a notice on the acquisition of voting shares
(participation shares) in the authorized capital of an economic company, or
when acquiring corresponding rights, the MAP of Russia or a corresponding territorial
board shall be obliged, within 7 days after the date of receipt of the petition
or the notice, to report about it, correspondingly, to the territorial board
of the MAP of Russia at the seat (at the place of residence) of the acquirer
of shares (participation shares).
When receiving a petition or a notice on acquiring fixed production assets
or intangible assets, the MAP of Russia or the corresponding territorial board
of the MAP of Russia shall be obliged, within 7 days from the date of receiving
the petition or the notice, to report about it to the territorial board of
the MAP of Russia at the seat of the economic subject who alienates fixed production
assets or intangible assets.
The communication shall be forwarded by a letter, by fax, by email or by a
telephone message.
6.4. When the MAP of Russia receives a petition or a notice on actions or
deals made by natural persons or legal entities, subject to forwarding for
coordination to the corresponding territorial board in conformity with the
present Regulations, the MAP of Russia shall, within 7 days from the date of
receiving the petition or the notice, pass it together with the enclosed information
(documents) for proper consideration to a corresponding territorial board along
with a written notification of the applicant within the same term.
In certain cases, the MAP of Russia may accept for consideration, including
at the request of a territorial board of the MAP of Russia petitions or notices
on actions or deals made by natural persons or legal entities that require
coordination with or notification of territorial boards of the MAP of Russia.
In this case, the MAP of Russia shall, within 7 days from the date of receiving
from the applicant the petition or the notice, subject to forwarding to the
territorial board of the MAP of Russia, inform the corresponding territorial
board about accepting the petition or the notice for its consideration. The
territorial board may be notified by a letter, fax, e-mail or telephone message.
6.5. The MAP of Russia may, within 7 days from the time of receiving the petition
or the notice, subject to forwarding to the MAP of Russia, pass the powers
to examine them to a corresponding territorial board along with a written notification
to the applicant, within the same term. In this case, the petition or the notices
shall be passed to the territorial board together with the enclosed information
and documents.
6.6. Corresponding territorial boards of the MAP of Russia shall not have the
right to accept from the applicant for consideration petitions or notices not
subject to the forwarded to them in accordance with the procedure laid down
in Items
6.1 and 6.2 of
the present Regulations.
If a territorial board of the MAP of Russia not authorized to examine such
in conformity with Section
6 of the present Regulations receives from the applicant a petition or
notice, it shall not accept the petition (notice) for consideration and within
7 days shall notify thereof the applicant or his authorized representative,
and in doing so they are to indicate the corresponding authorized anti-monopoly
body and its postal address. In such case, the territorial board of the MAP
of Russia shall not be obliged a to discharge the duty of forwarding the documents.
The applicant's forwarding a petition or notice to territorial boards of the
MAP of Russia not possessing the powers to consider the former shall be seen,
in conformity with the present Regulations as the non-presentation of petitions
or notices.
6.7. In the cases when a deal or action requiring a petition or a notice in
conformity with Articles
17 and 18 of
the Law exerts an impact on the state of competition on the commodity market
of the Russian Federation, the territorial board of the MAP of Russia shall
have the right to request that the MAP of Russia accept for consideration the
petitions or the notices subject to consideration by the territorial boards
of the MAP of Russia in conformity with the present Regulations.
In this case, the corresponding territorial board of the MAP of Russia shall,
within 10 days of receiving the petition or the notice, forward it for consideration
to the MAP of Russia.
6.8. The territorial boards of the MAP of Russia must inform the MAP of Russia
when they accept for consideration the following petitions (notices):
- on the creation, merger or the affiliation of associations (unions or amalgamations)
of commercial organizations;
- on the creation, merger or affiliation of commercial organizations with foreign
investments;
- on the acquisition, by a legal entity with foreign investments, or by foreign
citizens or stateless persons, of shares (participation shares) of fixed production
assets or of intangible assets, or of the rights enabling them to determine
the terms for the economic
subject's performing his business activity or to discharge functions of
his executive body;
- on participation of a foreign citizen or of a representative of a legal entity
with foreign investments in executive bodies, in boards of directors (supervisory
boards) of two or more economic subjects.
Informating is to take place within 10 days term from the date of accepting
the petition or the notice for consideration, by fax or in writing.
The territorial board of the MAP of Russia, considering the corresponding petition
or notice, must, if requested by the MAP of Russia and within the term fixed
by the latter, forward to the MAP of Russia before taking the decision, the
draft decision with the substantiation, as well as copies of all documents
and materials received by the corresponding territorial board in connection
with the examination of the petition or notice.
In the process of considering the corresponding petition or notice, the territorial
board of the MAP of Russia may seek recommendations of the MAP of Russia to
take a decision. In this case, it shall forward to the MAP of Russia its draft
decision with the substantiation, and also, if need be, copies of all the substantiating
documents and materials.
If the substantiation of the decision, being adopted by the territorial board,
is unlawful or if the draft decision is not well substantiated, the MAP of
Russia shall have the right to decree that the corresponding territorial board
should amend its decision.
6.9. The MAP of Russia shall send copies of its conclusions issued on the basis
of examination of petitions or notices under Articles
17 and 18 of
the Law to the territorial department at the seat of, correspondingly:
a) an economic subject whose property or rights in whose respect are the subject
of the deal (action);
b) an economic subject established through merger (affiliation),
c) the newly created commercial organization.
6.10. When considering petitions or notices, the anti-monopoly bodies shall
maintain contact with the interested parties to the extent to which it is necessary
to discuss with them any practical or legal matters.
6.11. The interested parties may express their point of view or give their
remarks in writing on all provisions concerning actions or deals on which the
petition or the notice to the anti-monopoly bodies is required in conformity
with Articles
17 and 18 of
the Law. In their written remarks the interested parties shall state all the
issues related to the case and may enclose any documents to prove the stated
facts. They may also propose that the anti-monopoly bodies hear out the persons
who may confirm these facts.
6.12. In those cases when the anti-monopoly bodies intend to reject the petition
or to satisfy it under the condition that the requirements designed to support
competition, are met, they shall have the right to inform the applicants on
the preliminary decision and on its substantiation, while laying down a provisional
period during which the applicants may forward to the anti-monopoly bodies
in writing additional information which is, in the applicants' opinion, important
for taking the decision, and may also express their opinion on the objections
of the anti-monopoly bodies.
In such cases, the anti-monopoly bodies shall take their final decision with
due regard to the additional information and arguments put forward by the applicant.
If the opinion is not expressed within the fixed term, the preliminary decision
of the anti-monopoly bodies shall become final and the applicant shall be informed
thereof in writing.
6.13. When considering a petition or notice, the MAP of Russia or the territorial
board of the MAP of Russia shall interact with any other territorial boards
of the MAP of Russia, including the territorial boards at the location of the
buyers, suppliers or competitors of the economic subjects in question, as well
as the MAP of Russia.
7. Requirements to the Filing of Petitions and Notices
7.1. A petition or notice, together with the information and documents specified
in Section
1, Appendix 1 to the present Regulations, and also the information and
documents specified in Section
2, Appendix 1 to the present Regulations shall be directed to the anti-monopoly
bodies in the following ways:
- by a messenger, against a signature;
- by a registered letter with a message of receipt;
Some documents and information specified in Section 2, Appendix 1 to the
present Regulations, and also other documents which the applicant or interested
parties may hold to be important for taking the decision, in addition to
above-mentioned ways, may be forwarded to the anti-monopoly bodies by fax
with the confirmation of receipt.
All additional documents presented to the anti-monopoly bodies by interested
parties shall be forwarded to the anti-monopoly bodies before the expiry of
the term indicated in Item
2, Article 17 of the Law.
7.2. The information and the documents shall be authentic and complete. The
enclosed documents shall be the originals or copies of the originals; in the
latter case, the person and/or the body who signs the petition or notice shall
confirm their authenticity and completeness.
The presentation of unauthentic data shall entail the responsibility in conformity
with Article
23 of the Law.
7.3. The petition and the notice shall be compiled in the Russian language.
The enclosed information and documents shall be forwarded in their original
language along with a certified translation into the Russian language.
7.4. The documents and information specified in Appendix
1 to the present Regulations shall be presented in tied-up form and shall
be certified with the stamp of the person or of the body who files the petition
or notice with the anti-monopoly bodies. If the petition or notice is filed
by a natural person, the documents and the information shall be presented in
tied-up form and shall be certified with the signature of the natural person.
The signature of the natural person shall be certified in the standard manner.
7.5. The submitted documents (information) shall be numbered and they should
use and indicate numbers of paragraphs and of items specified in Section
1, Appendix 1 to the present Regulations. An exhaustive answer shall be
given to each question of the item.
If no exhaustive answer can not be given to the question of any Item it shall
be necessary to present the information in the available volume and to explain
why the applicant was not able to obtain the corresponding information.
If no precise information can be given on any one of the items, it shall be
necessary to provide estimated information and specify the fact that it is
an estimate, as well as give its sources and state methods used in the assessment.
7.6. Information which is a commercial secret presented by the applicant must
bear the mark "Commercial Secret" and may be forwarded in a separate
file but it shall be nevertheless included into the block of information (documents)
presented for examination of the petition or notice as a complete one.
7.7. The entire information shall be presented to the antimonopoly bodies for
a calendar year preceding the year of filing the petition or notice, unless
otherwise decreed by the anti-monopoly bodies. If there is no data compiled
on the basis of the calendar year, all required data shall be presented for
the financial year preceding the year of filing the petition or notice and
for the reporting period from the start of the year of filing the petition
or notice. In doing so one shall specify the period of time covered by the
submitted documents and information.
8. Results of Considering Petitions or Notices by the Anti-Monopoly Bodies
8.1. Upon the results of considering petitions (notices) the antimonopoly bodies
may take the following decisions:
8.1.1. In conformity with Article
17 of the Law:
a) upon results of consideration of corresponding petitions:
- to satisfy the petition;
- to satisfy the petition and make demands to amend the presented plan for
the merger or for the affiliation of commercial organizations or of their associations,
or for the division (the setting apart) of state-run and municipal unitary
enterprises, aimed at supporting competition, or concrete behavioral requirements
designed to support competition. In so doing, the decision of the anti-monopoly
bodies must contain concrete demands, their substantiation and the terms when
they are to be satisfied;
- to reject the petition and the motivated conclusion;
b) upon the results of consideration of corresponding notices:
- to conduct an additional check-ups of correspondence between the setting
up (the merger or the affiliation) of a commercial organization and the requirements
of the anti-monopoly legislation;
- to make demands to take measures in order to restore conditions necessary
for the competition. In so doing, the decision shall provide for concrete measures
to amend the implemented variant of the setting up, of the merger or of the
affiliation of a commercial organization, as well as the substantiation for
making such demands and also the term fixed for their implementation.
8.1.2. In conformity with Article
18 of the Law:
a) upon the results of the consideration of corresponding petitions:
- to satisfy the petition;
- to satisfy the petition and make demands to amend the presented plan for
the acquisition of voting shares (participation shares) to receive fixed production
assets or intangible assets, and to acquire corresponding rights designed to
support competition, or concrete behavioral demands designed to support competition.
In so doing, the decision of the anti-monopoly bodies shall contain concrete
demands, motives for making such demands and the term fixed for their satisfaction;
- to reject the petition and the motivated conclusion.
b) upon the results of consideration of corresponding notices:
- to conduct an additional check-up of correspondence between the notified
deal (action) and the requirements of the anti-monopoly legislation;
- to make demands to take concrete measures to restore the conditions necessary
for the competition. In so doing, the decision of the anti-monopoly bodies
shall contain concrete demands to amend the realized variant of the acquisition
of shares (participation shares), of the receipt of fixed production assets
or intangible assets, of the acquisition of the corresponding rights, and also
the substantiation for putting them forward and the term fixed for their satisfaction.
Order of
the Ministry of Antimonopoly Policy of the Russian Federation No. 785 of
October 31, 2000 supplemented Item 8.1.2 of these Regulations with the following
paragarph
Decisions on the satisfaction of the request for the completion of transactions,
taken according to the results of the examination of requests in keeping with
paragraphs 2 and 3 of Subitem (a), shall become invalid, unless such transactions
are carried out during one year since the day of the adoption of the given
decision.
8.2. The decision of the anti-monopoly bodies shall be forwarded to the applicant
in writing against his signature for receipt.
8.3. If there are no signs of the appearance or of the strengthened dominating
position of the economic subject and/or of restrictions as a result of completed
deals (performed actions) about which the antimonopoly bodies have been notified
in conformity with the established procedure, the latter shall forward to the
applicant a corresponding answer in writing within the term fixed in Item
5 of Article 17 and in Item
6 of Article 18 of the Law.
8.4. The period of time laid down by Item 5 of Article 17 and in Item 6 of
Article 18 of the Law concerned with the forwarding to the applicant of the
decision on the additional check-up of correspondence between the setting up
(the merger or the affiliation) of the commercial organization or the decision
to conduct an additional check as to whether the corresponding deal matches
the requirements of the anti-monopoly legislation, shall start on the day after
the antimonopoly bodies receive the notice and shall end after the expiry of
the 15th day after the start of the term.
The term for fulfilling the decision of the anti-monopoly bodies indicated
in Item
3 of Article 17 and in Item
4 of Article 18 of the Law shall end after the expiry of the last day of
the term specified in the decision.
If the terms, specified in the decision of the anti-monopoly bodies are counted
in weeks (months), then such a period of time shall begin on the next day after
the receipt of the decision of the antimonopoly bodies and shall expire in
the last week (month) of the term on the same day of the week, on which the
term started.
If the last day of the term defined by a period of time falls onto a day off,
the final day of the term shall be defined in conformity with Article
193 of the Civil Code of the Russian Federation (Part One).
8.5. Decisions of the anti-monopoly bodies shall be appealed against in conformity
with the procedure laid down by Articles
20 and 28 of
the Law.
8.6. The MAP of Russia shall have the right to cancel decisions of the territorial
boards to reject the petition and to put forward the demands stipulated by
Articles 17 and 18 of
the Law passed by them with a violation of the current legislation, or those
decisions which they have passed in breach of the scope of their powers.
8.7. A decision of the anti-monopoly body taken in conformity with Articles
17 and 18 of the Law may be cancelled (amended or supplemented) by the body
which took the decision in the following cases:
- if the applicants' objections to the substantiation of the decision made
by the anti-monopoly bodies at an earlier date are declared as motivated;
- on the orders of the MAP of Russia, if the substantiation of the decision
adopted by the territorial board of the MAP of Russia is unlawful or if the
decision itself is not well grounded.
8.8. To have the additional information and the documents which, in the applicant's
opinion, may change the earlier passed decision of the anti-monopoly bodies,
the applicant shall file a petition or a notice in conformity with the procedure
laid down by Section
5 of the present Regulations.
8.9. Copies of decisions of the territorial boards of the MAP of Russia passed
by them in conformity with Articles
17 and 18 of
the Law, are to be sent to the MAP of Russia within 10 days after a corresponding
decision is adopted.
8.10. The MAP of Russia shall keep the Register of Persons who have obtained
the consent of the anti-monopoly bodies to perform actions (to make deals)
or who have notified the anti-monopoly bodies on deals made (on actions performed)
in conformity with the requirements of Articles
17 and 18 of
the Law.
The procedure for keeping the Register and disclosing the data from the Register
shall be defined by the MAP of Russia.
8.11. The decision of the anti-monopoly bodies shall be issued in the form
of a conclusion which is to contain:
- the essence of the petition,
- the name and the legal address of the acquirer and economic company in respect
of whose property the rights are being acquired,
- the size of the block of shares (participation shares) which are acquired
as a result of the deal in question and the overall size of the block of shares
(participation shares), that is, those added up to those already owned by the
acquirer,