The Arbitral Court of the Moscow District confirmed the legality of the FAS decision to recognize the conspiration between CJSC Euroservice Firm and Mega Pharma LLC with participation in 331 auctions for the supply of medicines and medical devices worth more than 800 million rubles as illegal. This has been reported in the FAS press-release in the message of the department. Thus, the court rejected the complaints of the companies.
In February 2018, an investigation commission of the antimonopoly authority established that there was indeed a cartel formed between the two firms. The FAS ruled that they have violated the provisions of Section 11 of the Law on the Protection of Competition. In November 2019, the antimonopoly service fined Euroservice Firm 234 million rubles, and Mega Pharma 49.5 million rubles.
The two companies in question did not agree with the decision of the Federal Antimonopoly Service, that ruled that the companies mentioned above have violated the law and substantiated their position by concluding on an agreement on trust management of shares in the authorized capital. According to the companies, a 60% stake in the authorized capital of Mega Pharma was transferred to the trust management of the second company. In their opinion, this led to the establishment of control of one company in relation to another, which excludes qualification under paragraph 2 of part 1 of article 11 of the law on the protection of competition.
Meanwhile, the FAS ruled that the transfer of a share in the authorized capital not included in the unified state register of legal entities does not entail the transfer of ownership and the establishment of control.
Courts of appeal and cassation instances agreed with the department's position, thereby, as noted in the message, creating an actual judicial practice on the inadmissibility of such actions by persons at tenders in the presence of a trust deed.
"The case against Euroservice Firm CJSC and Mega Pharma LLC has become case-law, as two courts have supported the position of the FAS Russia regarding the trust agreement, which has caused controversy among judges of various instances over the past 2-3 years," commented court ruling Andrei Tenishev, head of the anti-cartel department of the FAS Russia.