Decision-making algorithm at transactions with the foreign capital participation
At receipt of the notification from an economic entity the antimonopoly authority conducts the analysis of:
- competition aspects of the transaction;
- other aspects of the transaction.
If, in the result of the analysis, held by the antimonopoly authority, of competition aspects of the transaction it is established that the given transaction does not lead to the restriction of competition, the economic entity receives the permission without any instructions and remedies.
If, in the result of the analysis, held by the antimonopoly authority, of competition aspects of the transaction it is established that the given transaction leads to the restriction of competition the possibility of permission with the instruction on the undertaking of actions aimed at securing of competition is considered. If it is impossible to secure competition in commodity market using the instruction, the antimonopoly authority rejects the notification of the economic entity.
Simultaneously with the analysis of competition aspects of the transaction the antimonopoly authority carries out the analysis of other aspects of the transaction, in particular, the consequences of the realization of the transaction for the national security of the Russian Federation are analyzed. At present, the antimonopoly authority together with the federal authorities of executive power, which competence includes decision-making (recommendations) on issues of strategic and national security, elaborates its opinion on the opportunity of the transaction realization.
If the federal authorities of executive power, which competence includes decision-making (recommendations) on issues of national security and defensibility of the Russian Federation, negatively consider the possibility of the transaction and granting of the notification may lead to the restriction of competition in the commodity market, the antimonopoly authority dismisses the economic entity' notification.
If the federal authorities of executive power come to the conclusion that the transaction' realization is possible with remedies, the federal authority of executive power (the Ministry of Economic Development and Trade) elaborates an Agreement (Contract) aimed at guaranteed manufacturing of the production dealing with the strategic and national security. The given Agreement is concluded between the Purchaser and the Government of the Russian Federation and is an integral part of the decision of the antimonopoly authority.
Thus, the antimonopoly body satisfies the notification with the issuing of the instruction on undertaking of actions directed at securing of competition, and also, taking into account the Agreements between the Purchaser and the Government of the Russian Federation, at the exclusion of the negative consequences for the national security and defensibility of the Russian Federation.
