Investigation and settlement

Legal representation

Under which circumstances would the company and officers or employees need separate legal representation? Do the authorities require separate legal representation during certain types of investigations?

The company and officers or employees need separate legal representation if their interests contradict each other or if they are involved in separate administrative or criminal proceedings. The authorities do not require separate legal representation during certain types of investigations.

Dawn raids

For what types of infringement would the regulatory authority launch a dawn raid? Are there any specific procedural rules for dawn raids?

The FAS may launch a dawn raid for any type of antitrust infringements.

A dawn raid can be scheduled based on materials coming from law enforcement or other state authorities and showing signs of an antitrust violation; reports and applications of individuals, legal entities and mass media reports showing the signs of an antitrust violation; expiry of the time period for execution of an earlier issued FAS compliance order; instructions of the President and the government; and FAS detecting the signs of an antitrust violation.

Chapter 6 of the Competition Law establishes specific procedural rules for dawn raids. According to these rules, FAS must warn a business entity in 24 hours prior the start of a dawn raid, except for dawn raids connected with suspicions in cartel activities. In the latter case notification about the coming inspection is prohibited. The total duration of a dawn raid shall not exceed one month. In exceptional cases this term may be extended by two months.

During a dawn raid, FAS officers may, upon producing their official identification cards and the FAS inspection order, enter freely into various types of governmental bodies, commercial and non-profit organisations (except for an individual’s property) in order to obtain the necessary documents and information and examine visually areas, premises (except for a dwelling of an individual), documents and articles of the inspected entity in the presence of at least two attesting witnesses. During such examination, they are entitled to carry out photographing, filming and videotaping, make copies of documents and of electronic media. If required, they may engage qualified experts in the course of examination.

FAS officers may request documents and information from the inspected entity, as well as materials made in the form of a digital or electronic record that are necessary for inspection purposes (including commercial and other secrets), copy and make extracts from such documents, materials and information and, if necessary, review the originals. In addition, FAS officers may request oral or written explanations on matters related to the dawn raid.

What are the company’s rights and obligations during a dawn raid?

During a dawn raid, the company has a right to:

  • be familiarised with administrative regulations governing an inspection prior to its commencement and receive full information related to the inspection, its scope and subject matter, as well as related documents;
  • be present during the inspection and give explanations;
  • request a copy of an inspection report with annexes, confirm the inspection results reflected in the inspection report or state its objections to the inspection report or separate acts of the FAS officers;
  • exercise its rights directly or through a representative;
  • appeal against the results of an inspection in FAS or in court; and
  • receive compensation for any damages caused by FAS officers’ unlawful acts, including for lost profits.

The company must not create obstacles for FAS officers to access its premises, and must provide documents and information at the FAS officers’ request.

Settlement mechanisms

Is there any mechanism to settle, or to make commitments to regulators, during an investigation?

Generally, a case cannot be settled during an investigation. However, in cases of certain forms of abuse of dominance (ie, the imposition of contractual conditions unprofitable for a counterparty or not related to the subject matter of an agreement, an economically or technologically unjustified refusal to contract with certain customers; an economically, technologically or otherwise unjustified setting of different prices for the same goods; discrimination) and unfair competition, FAS may issue a warning order to a company before commencement of an antitrust case. If the company fulfils the warning order, FAS will not commence an antitrust case for this violation.

What weight will the authorities place on companies implementing or amending a compliance programme in settlement negotiations?

FAS will view it as a positive development, which may make settlement negotiations easier.

Corporate monitorships

Are corporate monitorships used in your jurisdiction?

Corporate monitorships are not used in Russia.

Statements of facts

Are agreed statements of facts in a settlement with the authorities automatically admissible as evidence in actions for private damages, including class-actions or representative claims?

An FAS decision on antitrust case can serve as evidence in private antitrust litigation.

Invoking legal privilege

Can the company or an individual invoke legal privilege or privilege against self-incrimination in an investigation?

Legal privilege covers any information (in oral or written form) obtained by an attorney from his or her client in the course of advising his or her client or vice versa (attorney-client privilege). An attorney cannot give witness statements with respect to the facts he or she has become aware of in the course of providing legal services to a client. Evidence obtained by legal counsel not registered as an attorney, such as in-house counsel, is not privileged.

Privilege against self-incrimination is not available during FAS investigations.

Confidentiality protection

What confidentiality protection is afforded to the company and/or individual involved in competition investigations?

The company or individual must provide FAS with all documents and information related to the subject matter of the investigation, including those constituting their commercial secrets. FAS has to keep this information confidential. In addition, a participant of FAS investigation may apply for consideration of the case in a closed hearing if it is required to protect its commercial secrets. FAS may also decide to carry out a closed hearing per its own initiative.

Refusal to cooperate

What are the penalties for refusing to cooperate with the authorities in an investigation?

Failure to provide documents or information to FAS in due terms may lead to administrative liability consisting in a fine up to 500,000 roubles for companies and up to 15,000 roubles for company officers. The creation of any other obstacles to FAS investigation may lead to administrative liability consisting in a fine up to 50,000 roubles for companies and up to 10,000 roubles for company officers.

Infringement notification

Is there a duty to notify the regulator of competition infringements?

There is no duty to notify the regulator of competition infringements.

Limitation period

What are the limitation periods for competition infringements?

The statutory limitation period for competition infringements constitutes three years since their commitment or, if the infringement is continuous, since its termination or revelation. Continuous infringement is a failure to comply with the law over a lengthy period of time.