PTK-HOLDING DISPUTE WITH FAS RUSSIA ENTERED IN TOP-7 ANTIMONOPOLY DISPUTES FOLLOWING THE RESULTS OF 2019
PTC-Holding JSC applied for prior consent to make a transaction to acquire 100% of shares of Promyshlennyie aktivy LLC The FÁS Russia considered the application and denied it. The authority justified this by having a dominant position in the market of innovative gondola cars, and as a result of the transaction - by its strengthening. The Company applied to the Arbitration Court of Moscow to declare the decision of the FAS illegal. The applicant stated that FAS misidentified the commodity market in which the company operates, and therefore reached an erroneous conclusion about the dominant position of PTC-Holding JSC and its strengthening as a result of the transaction.
After considering the application, the arbitral tribunal granted it in full and declared the decision of the FÁS illegal. The Arbitration court noted that the antitrust authority violated the procedure for determining the product boundaries of the commodity market, which led to the erroneous allocation of innovative gondola cars as a separate commodity market. In addition, the FAS violated the rules for determining the geographical boundaries of the commodity market - this led to their unjustified narrowing to the territory of Russia. The antitrust authority in relation to PTC-Holding JSC applied a different indicator for calculation of the volume of the commodity market and shares of economic entities than in relation to other participants. Therefore, the composition of market participants also does not take into account all economic entities operating on it. The appeal and cassation upheld these conclusions (Nos. A40-43799/2019).
According to Victor Fadeev, Senior Lawyer of the Antitrust Law Practice of Infralex: "The courts have drawn important conclusions: all types of gondola cars (innovative and ordinary) are interchangeable and belong to the single commodity market. At the same time, the courts indirectly confirmed that the antitrust authority cannot ignore previous research. In order to review the boundaries of the commodity market, it must be proved that since the previous analysis its operating conditions have changed so much that it has allowed to highlight new product and geographical boundaries. Such an approach by ships will prevent FAS from crushing commodity markets solely for the purpose of establishing a dominant position among individual economic entities that cannot have a decisive impact on the conditions of circulation of the commodity".