Major Developments in Trade Law in the Russian Federation | Practical Law

Major Developments in Trade Law in the Russian Federation | Practical Law

Major Developments in Trade Law in the Russian Federation

Major Developments in Trade Law in the Russian Federation

Practical Law UK Articles 1-501-4888 (Approx. 4 pages)

Major Developments in Trade Law in the Russian Federation

by Igor Ostapets, Anna Maximenko and Igor Kornev, White & Case LLP
Published on 16 Feb 2010Russian Federation

State Regulation of Prices

According to the Law on Trade, federal laws may provide for state regulation of prices, and trade margins on prices, for certain types of products, including setting minimum and maximum limits.
At the same time, the Law on Trade establishes special regulations with respect to food products of social importance and prime necessity (essential products). The Government may establish maximum limits on retail prices for essential products if the prices for them have increased by 30 or more percent within a period of 30 consecutive calendar days on the territory of one or several constituent entities of the Russian Federation. The maximum limit on prices may be introduced for no more than 90 calendar days. If established, the maximum limit is to be considered by parties to a food products supply agreement when executing it.
The list of essential products and the procedure for establishing the maximum allowed retail prices on them will be approved by the Government.

General Requirements for Trading Activities

Information Disclosure

The Law on Trade requires both retail chains and products suppliers to disclose their criteria for choosing counterparties to food supply agreements and the essential terms and conditions of such agreements. The products suppliers must also disclose information on the quality and safety of supplied products. The information must be disclosed on the websites of retail chains and products suppliers or provided by them free of charge upon request (within 14 days from the day when the request was received).

Bonuses of Retail Chains

The Law on Trade aims to prevent the imposition of discriminatory conditions on products suppliers wishing to enter the market, as well as any substantial increases in the final retail prices of products. The Law on Trade specifically targets the widely used practice of awarding various types of bonuses and incentive payments to retail chains by products suppliers (e.g., retail chain entry bonus, premium for changing the products' assortment, listing bonus for introducing new brands). According to the Law on Trade, only the so-called volume bonus (i.e., a bonus for bulk purchases) may be offered to retail chains in the food products supply agreement (save for agreements with respect to essential products). The volume bonus may not exceed 10% of the price of the products.
Further, the Law on Trade provides that the rendering of advertising, marketing and similar services aimed to promote food products may not be regulated by a food products supply agreement, but rather a separate services agreement. It is prohibited to force a party to execute a services agreement when concluding the supply agreement.

Payment Terms under a Supply Agreement

The Law on Trade sets out limited terms within which trading companies must pay for the supplied products where a supply agreement provides for a deferred payment (the established terms are significantly shorter compared to the current standard practice). The supplied food products must be paid for within a certain period from the day of their acceptance, depending on their shelf life term. In particular, the food products with a shelf life term:
  • Less than 10 days must be paid for within 10 working days.
  • From 10 to 30 days must be paid for within 30 calendar days.
  • More than 30 days, as well as alcohol products manufactured in Russia, must be paid for within 45 calendar days.
In the case of a supplier's failure to provide the documentation with respect to the supplied products as required by the law and the supply agreement, the payment term shall be extended to the period for providing such documents.
In addition to the above, to ensure the stability of operations of the products suppliers, the Law on Trade provides that the food products supply agreement may not prohibit the assignment of rights or establish penalties for such assignment.

Antimonopoly Regulation of Trading Activities

Prohibited Actions Limiting Competition

The Law on Trade aims to, among other things, develop antimonopoly regulation and competition in the retail trade services market. In particular, it lists actions which limit competition and which may not be performed by retail chains and food products suppliers, including the following:
  • Creating discriminatory conditions, including obstacles for entering the market and penalties for breaching price formation procedures.
  • Wholesaling the products under commission agreements or mixed contracts containing the elements of a commission agreement.
The Law on Trade also prohibits the imposition of certain conditions on the counterparty, including the following: (i) prohibition to execute contracts with other market players or on similar or other conditions; (ii) liability for failure to supply food products on terms that are more favorable than the terms provided to other market players; (iii) disclosure of information on contracts executed with other market players; (iv) product entry premium for a retail chain; (v) payment for changing the assortment of products; (vi) decreasing the supply price of products, such that after adding the trade margin the price does not exceed the minimum price for that product as established by other trading companies; (vii) reimbursement of costs which are not related to performance of the supply agreement and to further resale of a certain part of such products; and (viii) returning unsold products to the supplier, unless permitted under Russian law.

Acquisition/ Lease of Additional Trading Facilities

To promote the vertical development of retail chains the Law on Trade prohibits a retail chain from acquiring and leasing additional trading facilities (including as a result of placing them into operation) if their market share exceeds 25% of all sold food products within a constituent entity of the Russian Federation, including cities of federal importance (Moscow and Saint Petersburg), municipal districts or city regions. A transaction (save for those executed before 1 February 2010) executed in violation of the above limitation is invalid.
This limitation will apply to market shares within municipal districts and city regions as of 1 July 2010.
According to publicly available information, the Federal Antimonopoly Service (FAS) has already prepared a draft methodology for determining the market share of retail chains and submitted it to the Ministry of Economic Development for approval as a step in implementing the abovementioned provisions of the Law on Trade.
The Law on Trade additionally sets out limitations on actions of state and municipal authorities so as to prevent the creation of unreasonable obstacles for trading activities and discriminatory practices for retail chains and products suppliers.

Trade Registers

State authorities of the constituent entities of the Russian Federation will establish trade registers containing information on trading companies, products suppliers (save for producers) and the state of trading activities on the territory of the respective constituent entity. Information stored at the registers will be available to legal entities and individuals free of charge.

Liability for Breaches of the Law on Trade

An individual or entity may be subject to civil, administrative or criminal liability for breaches of the Law on Trade. In particular, FAS has recently published on its official website a bill amending the Administrative Offences Code. The bill provides that administrative liability may be imposed on retail chains trading food products and suppliers for breaching the legislation on state regulation of trade, including the following actions:
  • Breaching the antimonopoly rules
  • Failure to disclose information
  • Inclusion of certain provisions prohibited by the law in food products supply agreements with retail chains.
  • Retail chains forcing products suppliers to enter into a contract for the provision of promotional services for a fee with respect to products supplied to the retail chain.
The administrative fine may be imposed on officers and legal entities and may amount to up to 50,000 roubles (approximately, USD 1,670) and 1 million roubles (approximately, USD 33,330), respectively.
The provisions of the bill will apply if adopted by the State Duma in three readings, approved by the Federation Council, signed by the President and officially published. According to publicly available information, the bill has not yet been submitted to the State Duma (as of the date of issuance of this Special Update).