Complaint about unfair competition to the FAS: sample application

Unfair competition is any action aimed at obtaining certain advantages in commercial activities, which contradict the norms of current legislation and create unequal conditions for the development and development of the market. Due to this, a company or individual entrepreneur is deprived of the opportunity to fully promote its services, sell goods and increase its customer base due to their outflow to a competitor, which leads to a reduction in profits or direct losses.

In view of the fact that unfair competition can cause bankruptcy or termination of business activity, if you find yourself in such a situation, you should try to identify the violator as quickly as possible and file a complaint against his actions, which is provided for by the provisions of the antimonopoly legislation. In addition, in the courts you can try to obtain compensation for losses if you can prove that they arose due to the fault of a competitor.

What can you complain about?

To create a positive image and popularize the goods (services) they sell, companies spend enormous financial resources on their development, improving their product line, developing brands and advertising them. But all this may not lead to the desired result if its competitor decides to act by illegal methods, such as:

• Dissemination of knowingly inaccurate, distorted and false information. This means any public communication (including on the Internet) about facts or events that definitely did not happen in reality. In addition, it may be considered a violation if a competitor provided false information about himself (for example, indicated a famous person as his regular customer) in order to improve the image of his company.
• Incorrect comparison of goods or services to discredit the company or its products. Due to this, consumers develop a biased attitude, and they begin to increasingly purchase products from only a certain manufacturer.
• Dissemination of false information about the place of production, the quality of the product, its properties and conditions of use. To gain a competitive advantage, a company may indicate the use of exclusive technologies or publish deliberately false information on its website about the low quality of competitors' products.
• Introduction of a new product into circulation using the results of someone else's intellectual activity (another enterprise or organization). A typical example is when a new company, upon entering the market, registers a trademark whose appearance has much in common with a popular trademark of another company. As an option, in order to quickly increase sales volumes without large financial investments, another effective method of unfair competition can be used: selling goods in packaging whose color, shape and design are completely identical to the original packaging of a recognizable brand.
• Use, receipt and disclosure of information that is a trade secret (this may be the composition of product ingredients, technological process, etc.). This means a violation of confidentiality, which leads to damages and financial losses.
• Implementation of a systematic pricing policy aimed at eliminating competitors. In most cases, we are talking about dumping - the deliberate sale of goods at a reduced price (even below cost).
• Force: arson, blackmail, physical elimination, demonstration of force, etc.
• Tax evasion through gray wages: a competitor pays employees the official minimum wage, and pays the remaining amount in cash.
• Hiring illegal employees who are willing to work without a social package or employment contract.

Where to go

Having identified facts indicating unfair competition, you should take appropriate measures as quickly as possible to protect your business reputation and punish the violator. To do this, you can contact the following authorities:

1. The media (which published deliberately false information).
2. FAS.
3. Court.

Important! If a company or entrepreneur plans to receive compensation for damage suffered, then in any case it will not be possible to avoid legal proceedings.

Mass media

If deliberately unreliable or false information appears in the press or the Internet that discredits the image or reputation of a business, then its owner (authorized person) should immediately contact the editor-in-chief of the media to force him to remove such information.

It is preferable that such a complaint be made in writing on company letterhead. Its text should provide reasonable arguments why the information posted is not true, and demand that it be immediately removed or made inaccessible to readers. It is also important to mention that if the media does not publish materials to restore the image and reputation of the business (does not provide an appropriate refutation), then legal proceedings will be initiated to obtain monetary compensation for losses caused by unreliable publication.

To file a complaint with the media, you can use the contact information posted on its website. But if a company (entrepreneur) plans to apply to the Federal Antimonopoly Service and the court to protect its rights and legitimate interests, then it should keep the defamatory publication, which will indicate that a competitor is using unfair methods to promote its goods or services.

Attention! The faster the problem is localized, the less damage from unfair competition will be.

Procedure for consideration

An appeal received by the FAS is subject to mandatory consideration (Article 9 of Federal Law No. 59). Letters sent in electronic and written form are considered in accordance with the general procedure and within the time limits established by law.

Written appeals are registered and considered in accordance with Art. 8-12 Federal Law No. 59. The period for registering a complaint is 3 days, and the results of the consideration are sent to the applicant’s postal address. Explanations regarding the circumstances preventing the consideration of the complaint are sent to the applicant by postal or email within 7 days from the date of filing.

If the complaint does not contain personal data or details for sending a response, the complainant is not notified. However, the complaint can be considered on its merits without his participation.

Reference.

If the complaint meets the requirements of federal laws, then the complainant is sent a notice of acceptance for consideration. Information about the progress of the review is then posted on

official website of the FAS

, is further assessed by the commission.

After the decision is made, the results are published on the official website.

Electronic

According to Part 1 of Art. 6 Federal Law No. 63 of 04/06/2011, documents in electronic format signed with a qualified electronic signature are equivalent to documents on paper. The general procedure for considering electronic appeals does not differ from written ones. The complaint is registered within 3 days. Notification of acceptance, as well as the results of the review, is sent to the user by email.

According to the official website of the FAS, as well as Art. 12 Federal Law No. 59, the following deadlines for consideration of citizens’ appeals are provided, depending on the specifics of the violation:

• from 30 to 60 days - economic violations;
• up to 30 days - violations in the field of advertising;
• up to 5 days - violation of the contract procurement system;
• up to 7 days - violations of the legislation on procurement by legal entities;
• from 7 to 14 days - violations of urban planning legislation.

Investigation of cases in the field of antimonopoly and urban planning violations suggests the possibility of doubling the period for consideration of the application if there is a need to request additional information for verification.

FAS

The function of monitoring compliance with antimonopoly legislation in the Russian Federation is assigned to the Federal Antimonopoly Service, where a complaint should be filed if the use of any method of unfair competition has been identified. If the reason for such an appeal was the publication of false information in the media, then this can be done even after the compromising material is removed and a refutation of previously submitted information is posted instead. It is preferable that the applicant has materials indicating non-compliance with antimonopoly legislation, since the presence of evidence will greatly simplify and speed up the procedure for considering the claim.

You can complain about unfair competition to the FAS:

• By post. You can send a letter both to the Central Office and to your regional unit, guided by the contact information posted on the official website fas.gov.ru/pages/contacts/contact-info/. If the applicant has evidence indicating a violation of the law or allowing one to determine who used illegal methods of competition, then it can be attached in the form of additional materials (for example, this could be a copy of a newspaper message, a photograph of an advertisement, etc.), having made a preliminary detailed inventory of such documents. If there is evidence, you can count on a minimum period for considering the complaint and taking action against the violator. By default, a response to a written request will be sent to a postal address, but if the applicant wants to receive notification of the results of the review by email, this information should be indicated in the text of the document. To draw up a complaint about unfair competition to the FAS, you can follow this example.

• In the form of an electronic complaint, by sending an online letter to the address [email protected] To ensure that the FAS does not refuse to consider the complaint, it should be submitted as an attachment, making a photocopy of the document drawn up on paper (it is important to have the applicant’s handwritten signature). The text must indicate all the necessary information, circumstances and facts that may be relevant when considering a complaint about unfair competition. Additionally, you can attach electronic files (photos, videos, etc.) up to 8 MB in size, confirming the accuracy of the information indicated in the complaint.
• By fax (the current fax number can be found on the FAS website). But if in the future the applicant plans to defend his interests in court and wants to receive monetary compensation for the damage caused from the violator, it is better for him to use another option for filing a complaint, especially since it is not always possible to provide evidence by fax confirming the fact of a violation of competition law.
• Submit an application about unfair competition in a public reception to one of the heads of the Federal Antimonopoly Service or an authorized person. You can familiarize yourself with the procedure for organizing the reception of citizens at fas.gov.ru/pages/contacts/obshhestvennaya-priemnaya.html.
• Online through the service on the website fas.gov.ru/approaches/send_to_fas, selecting the appropriate type of appeal (complaint). In the process of filling out the electronic form, the user will have to indicate its recipient (the department of the Department), the method of providing the answer, his personal data and briefly describe the situation or actions of the competitor that forced him to contact the FAS to protect his rights and legitimate interests. You can attach one or more files of no more than 2 MB to the form, and if you need to transfer a larger electronic document to the Office, it can be sent to the FAS Internet mailbox.

Important! A complaint sent to the Central Office may be transferred for consideration to a regional unit.

How to properly submit a complaint to the Federal Antimonopoly Service in electronic form

The fundamental regulatory act for an entrepreneur who has decided to complain about a violation of Law 44-FZ is Order of the Federal Antimonopoly Service of Russia No. 727/14 dated November 19, 2014. It follows from it that the appeal is made in Russian and must be in writing.

Mandatory information is:

• information about the applicant, including postal address, e-mail, telephone;
• information about the person whose actions/decisions are being appealed;
• purchase number, unless the actions of the operator of the electronic platform are appealed;
• the reason for petition;
• documents confirming the applicant's arguments;
• list of attached papers.

On the agency’s website there is a sample of what a complaint to the Federal Antimonopoly Service should look like under 44-FZ.

We recommend looking at a real example - the complaint of the Federal Antimonopoly Service of Glison LLC.

In order for an entrepreneur’s request to be responded to, it must meet not only content requirements. It still needs to be submitted within specific deadlines. Otherwise, the department will refuse, and you will only be able to appeal the customer’s decisions or actions in court.

For convenience, we present the acceptable deadlines for sending letters to the FAS in connection with violations of the norms of 44-FZ in the form of a table

Court

The use of unfair competition methods entails administrative liability, provided that this is proven during court proceedings. In addition, the injured person (company, individual entrepreneur, etc.) may apply to the arbitration court for compensation for damage caused if it was received as a result of a competitor using illegal methods of doing business, which will be confirmed by relevant materials or documents. On the other hand, the party that was caught by the FAS in unfair competition can also file a claim if it does not agree with the decision made and wants to have the penalties canceled in court.

The success of the trial largely depends on the volume of evidence and the experience of the lawyer who will represent the interests of the injured person in court. If he manages to prove that the competitor’s actions were dishonest and contrary not only to business ethics, but also to the norms of relevant legislation, the methods of disciplinary action provided for by the current law will be used against the violator. He may also be prohibited from using a recognizable “foreign” brand, producing products in packaging that is similar to the packaging of a well-known brand, or be forced to rebut false information.

But at the same time, the claim may be rejected if the injured party provides insufficient evidence to the court or the arguments of its lawyer turn out to be unconvincing, which ultimately determines the entire outcome of the process. The only way to avoid such a situation is to use the help of a qualified lawyer who specializes in cases of unfair competition.

A claim should be filed with the arbitration court at the place of registration, guided by the contact information posted on the website www.arbitr.ru/.

Important! If the applicant does not want to waste time on proceedings with the FAS and immediately goes to court, then he may be denied consideration of the claim, motivating such a decision by the fact that such cases are within the competence of the FAS.

Procedure for consideration

An appeal received by the FAS is subject to mandatory consideration (Article 9 of Federal Law No. 59). Letters sent in electronic and written form are considered in accordance with the general procedure and within the time limits established by law.

Submission in writing

Written appeals are registered and considered in accordance with Art. 8-12 Federal Law No. 59. The period for registering a complaint is 3 days, and the results of the consideration are sent to the applicant’s postal address. Explanations regarding the circumstances preventing the consideration of the complaint are sent to the applicant by postal or email within 7 days from the date of filing.

If the complaint does not contain personal data or details for sending a response, the complainant is not notified. However, the complaint can be considered on its merits without his participation.

Reference. If the complaint meets the requirements of federal laws, then the complainant is sent a notice of acceptance for consideration. Then information about the progress of the review is posted on the official website of the FAS, and is subsequently assessed by the commission.

After the decision is made, the results are published on the official website.

Electronic

According to Part 1 of Art. 6 Federal Law No. 63 of 04/06/2011, documents in electronic format signed with a qualified electronic signature are equivalent to documents on paper. The general procedure for considering electronic appeals does not differ from written ones. The complaint is registered within 3 days. Notification of acceptance, as well as the results of the review, is sent to the user by email.

The document is registered in the FAS Office and sent to subordinate structural units. The condition for acceptance is the completion of a form on the website or the presence in the application of the information listed in Art. 7 Federal Law No. 59.

The legislative framework

To file a complaint about unfair competition, you should be guided by the following legislative acts:

1. Constitution of the Russian Federation of December 12, 1993.
2. Civil Code of the Russian Federation N 14-FZ dated January 26, 1996. (as amended on March 28, 2017).
3. Code of the Russian Federation on Administrative Offenses N 195-FZ dated December 3, 2001. (as amended on July 29, 2017).
4. Federal Law “On Protection of Competition” N 135-FZ dated 07.2006 (as amended on 07.29.2018)
5. Federal Law “On the procedure for considering appeals from citizens of the Russian Federation” No. 59-FZ dated May 2, 2006. (as amended on November 27, 2017).