Cartel collusion, clarifications of the Constitutional Court
The Constitutional Court of the Russian Federation clarified when participants in public procurement are not punished for an anti-competitive agreement or cartel.
Controllers revealed a cartel and punished two participants. They simultaneously filed identical bids and supported the price at the auction.
The participants decided that their actions fell under the exception: they could not compete with each other, since they belong to a group of persons that is actually controlled by one person. There should not have been a fine for an anti-competitive agreement.
The courts rejected the arguments. The Constitutional Court of the Russian Federation agreed with them and, in particular, explained:
– an exception to the prohibition on cartels applies only to a group of controlled persons. We are talking about situations where one of its participants or an individual directly or indirectly determines all actions;
– control over such a group may come from the powers of the executive body or the order of more than 50% of the votes. This rule cannot be interpreted broadly. In addition, control must be legally formalized;
– in practice, it is possible that the decisions of the participants are determined by one person after the fact. However, the exception does not apply in such cases.
Document: Resolution of the Constitutional Court of the Russian Federation of March 30, 2023 N 12-P
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