Russian competition watchdog: companies with low risk profile to be exempted from regular checks
A transition to a risk-based approach for conducting regular (scheduled) inspections by the Russian competition authority (FAS) has been announced for the year 2018. The relevant legislative amendments have been prepared by the FAS and will be adopted in the form of a resolution of the Russian Government. Companies will be included in the FAS’s inspections schedule if they meet specific criteria and according to a certain risk level: “medium,” “moderate,” or “low”.
Natural monopolies and retail chains with a turnover exceeding RUB 10 billion (approximately EUR 150 million) will fall under the medium-risk category. These businesses will be subject to scheduled inspections by the FAS once every three years.
Other major businesses, including companies operating on socially important markets, with turnover exceeding RUB 10 billion will fall under the moderate-risk category. These businesses will be subject to scheduled inspections by the FAS once every five years.
Companies with a turnover of less than RUB 10 billion are supposed to be excluded from the FAS inspections schedule completely.
Information on companies falling under the medium- and moderate-risk categories will be published on the website of the competition authority by 15 July of the year preceding the year of inspections. The companies on this list can approach the FAS with a request to clarify the grounds for attributing the company to this or that category. Moreover, a company is entitled to apply to the FAS in order to get the pre-defined (by the FAS) risk level revised. The FAS will review the application on an individual basis and, depending on whether sufficient arguments are provided, inform the business about the change in risk category.
In addition to the above, the new system provides that the risk level of a company that had experienced a violation of the antimonopoly legislation within the last three years preceding the year of inspection is increased by one step (i.e. from the moderate- to the medium-risk category). Vice versa, if a company has not committed any antitrust offences for the past three years and has implemented an antitrust compliance system, the risk level will be reduced. “A certain ‘lift’ is envisaged to allow the risk category to be decreased: if a company has not violated the antimonopoly law for three years and has implemented an antitrust compliance programme. If these two conditions are met, the company’s risk category will be reduced from medium to moderate.” said Deputy Head of FAS Sergey Puzyrevskyi at an event dedicated to antitrust compliance.
Unscheduled inspections and dawn raids by the FAS remain unaffected by the proposed amendments.
 Draft Resolution of the Government of the Russian Federation “On Application Of a Risk-Based Approach Upon Organisation of the Federal State Control (Supervision) over Compliance with Antitrust Legislation and Natural Monopolies Legislation”; the initial text was published in April 2017: http://regulation.gov.ru/projects#npa=63768. However, the criteria for the different risk categories have undergone revisions since the initial publication of the draft resolution. This article refers to the criteria mentioned in recent public statements made by FAS official, e.g.: https://fas.gov.ru/press-center/news/detail.html?id=51834.