Cartel: The Constitutional Court of the Russian Federation explained when participants in public procurement are not punished for an anti-competitive agreement
The inspectors revealed a cartel conspiracy and punished two participants. They simultaneously submitted 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, because they are part of a group of persons actually controlled by one person. It should not have been fined for an anticompetitive agreement.
The courts rejected the arguments. The Constitutional Court of the Russian Federation agreed with them and, in particular, explained:
- the exception to the ban on cartels applies only to a group of controlled persons. We are talking about situations when 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 disposal of more than 50% of the votes. This rule cannot be interpreted broadly. In addition, the control must be legally formalized;
- in practice, it is possible that the decisions of the participants are determined by one person in fact. However, an exception is not applied in such cases.
Document: Resolution of the Constitutional Court of the Russian Federation of 30.03.2023 N 12-P