The Supreme Court has clarified the nuances of calculating the term of liability for transactions not agreed with the FAS of Russia
06.10.2020The Supreme Court has clarified the nuances of calculating the period of liability for transactions not agreed with the FAS. As the Court pointed out, the period of liability under the Administrative Violations Code (AVC) for failure to approve transactions involving the alienation of intangible assets is calculated from the signing of acts of acceptance and transfer of such objects rather than the contracts themselves.
Victoria Tugolukova You & Partners’ associate commented on this court case for Advokatskaya Gazeta, noting that for the purposes of state control over the transfer of shares, interests and assets, the term "execution of a transaction" is used, which is not defined in the Law on Protection of Competition and the Russian Civil Code. At the same time, law enforcement and judicial practice usually understand "execution of a transaction" as the actual transfer of shares, interests, assets (performance of obligations), i.e. signing an acceptance certificate rather than signing an agreement (see the clarifications of the Federal Antimonopoly Service of Russia dated 29 April 2009).
According to the expert, prior consent is required for a de facto transfer of assets because it is the transfer itself and not the agreement to transfer assets is what is violating competition. This is reflected in the position of the Supreme Court of the Russian Federation. At the same time, the complexity of this issue is also confirmed by the existence of contrary court practice where the court has taken the position that the use of the term "execution of a transaction" does not mean that the antimonopoly authority's prior consent (where it is required) can be obtained after the transaction is concluded but before its actual execution.
The position of the Supreme Court is supported by clause 8(1) of Article 27 of the Law on Protection of Competition. Article 27(1) of the Law on Protection of Competition uses the term "conclusion of an agreement" rather than "execution of a transaction" in relation to prior approval of a joint venture agreement.
More details on Advocatskaya Gazeta website
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