On 9 June 2017 the Federal Antimonopoly Service of the Russian Federation (“FAS”) published on its website the latest clarifications with respect to Article 9 of the Retail Law1 determining the terms on the price of products and discounts (the “Clarifications”).2 The need to develop the Clarifications was evidently caused by FAS’ attempt to eliminate the “imbalance of interests of market participants” which, according to the service’s representatives, continues to exist under the influence of the massive demands of retail chains to provide them discounts.3
In particular, FAS’ Clarifications have reproduced the interpretation of the Retail Law already announced in its previous clarifications,4 according to which it is possible to provide a discount on a product after ownership has passed to the purchaser (after delivery), a so-called “retrodiscount,” only when the parties agreed on such a discount (the procedure for calculating it and the terms for providing it) when they entered into the supply contract.
FAS also allows the supplier to reduce the price of the product for a certain period of time (for example, the use of “sale” discounts), provided the purchaser sells the product to retail consumers at a price that is reduced at not less than that rate.
However, in cases where a supplier provides discounts at the request of a business that is engaged in retail, and the price for the product does not correspond to the price the parties agreed on in the supply contract, but the discount itself is not “passed on” to the end consumer, FAS will consider such discounts as an analogue of “consideration” to which the five-percent limit on total consideration applies. When calculating total consideration in such cases the difference between the product price stated in the supply contract and the price at which the product was actually supplied to the purchaser will be taken into account (i.e., with the provided discount).
In the Clarifications FAS emphasizes that the procedure for providing discounts should not contravene the antitrust rules enshrined in the Retail Law (in particular, on non-discrimination, not imposing certain terms on the contracting party, etc.).