|
A group of persons is referred to as an aggregate of natural persons and / or legal entities that correspond to one or more of the following conditions: (this wording is included by the Federal Law No. 164-FZ of July 17, 2009, before its publication it was easier - "a group of persons is recognized as"):
1) a business entity (partnership) and an individual or a legal entity, if such individual or such legal entity has, by virtue of its participation in this business entity (partnership) or in accordance with the authority received from other persons, more than 50% of the total the number of votes attributable to voting shares (stakes) in the authorized (share) capital of this business entity (partnership);
2) business entities (partnerships) in which the same individual or the same legal entity has, by virtue of its participation in these business entities (partnerships) or in accordance with the authority received from other persons, more than 50% the total number of votes attributable to voting shares (stakes) in the authorized (share) capital of each of these business entities (partnerships);
3) a business entity and an individual or a legal entity, if such individual or such legal entity exercises the functions of the sole executive body of this business entity;
4) business entities in which the same individual or the same legal entity exercises the functions of the sole executive body;
5) a business entity (partnership) and an individual or a legal entity if such individual or such legal entity on the basis of the constituent documents of this business entity (partnership) or the contract concluded with this business entity (partnership) has the right to provide this business entity (partnership) with binding instructions;
6) business entities (partnerships) in which the same individual or the same legal entity on the basis of the founding documents of these business entities (partnerships) or the contracts concluded with these business entities (partnerships) is entitled to give binding instructions to these business entities (partnerships);
7) a business entity and an individual or a legal entity if, at the suggestion of such individual or such legal entity, a sole executive body of this business entity is appointed or elected;
8) business entities, the sole executive body of which was appointed or elected at the suggestion of the same individual or the same legal entity;
9) a business entity and an individual or a legal entity if, at the suggestion of such individual or such legal entity, more than 50% of the number of the collegial executive body or the board of directors (supervisory board) of this business entity are elected;
10) business entities in which more than 50% of the number of collegial executive body and (or) the board of directors (supervisory board) are elected at the suggestion of the same individual or the same legal entity;
11) business entities in which more than 50% of the number of collegial executive body and (or) the board of directors (supervisory board) are the same individuals;
12) persons who are members of the same financial and industrial group;
13) an individual, his/her spouse, parents (including adoptive parents), children (including adopted children), brothers and sisters of the whole blood or brothers and sisters of the half blood. As stated in Art. 14 of the Family code of the Russian Federation, brothers and sisters of the half blood accordingly are brothers and sisters who have a common father or mother;
14) persons, each of whom, on any ground specified in clauses 1-13 of this part, is included in the group with the same person, as well as other persons who enter with any of such persons in one group according to any specified ground in clauses 1-13 of this part. Prior to amending the Federal Law No. 164-FZ of July 17, 2009, it referred to other persons belonging to the same group "with each such person" and not "any of such persons". Under the terms of validity of this edition, the letter of the FAS of Russia No. ATs/5969 of March 20, 2008, "On Clarifying the Application of the Antimonopoly Legislation," it was explained that in the event that an individual is included in the group of persons of a legal entity, the relatives entering into one group of persons with this individual upon the grounds specified in clause 13 of part 1 of the article to be commented will not be included with the specified legal entity in the group of persons on the grounds specified in clause 14 of this part, provided that these relatives do not constitute a group of persons with another legal entity on any of the grounds specified in clauses 1-12 of this part;
15) a business entity (partnership), individuals and (or) legal persons who, according to any of the characteristics specified in par. 1-14 of this part, are included in one group of persons, if such persons by virtue of their joint participation in this business entity (partnership) or in accordance with the powers and authority received from other persons, have more than 50% of the total number of votes attributable to voting shares (stakes) in the authorized (share) capital of this business entity (partnership).
In fact, we are talking about a group of persons when there is an aggregate of subjects, one of whom may influence the activities of another, or the activity of several subjects may be influenced by the same subject (subjects), with emerging of dependency relations and the possibility of implementing a single coherent policy on the market.
All the relationships, due to which a group of persons can be considered, can be grouped as follows:
1) property relations;
2) ancestral relationship;
3) corporate and contractual relations;
4) managerial relations;
5) organizational relations;
6) relations of a mixed nature;
7) other relationships.
Property relations. A group of persons refers to:
1) a business entity (partnership) and an individual or a legal entity, if such individual or such legal entity has, by virtue of his participation in this business entity (partnership) or in accordance with the authority received from other persons, more than 50% of the total the number of votes attributable to voting shares (stakes) in the authorized (share) capital of this business entity (partnership);
2) business entities (partnerships) in which the same individual or the same legal entity has, by virtue of its participation in these business entities (partnerships) or in accordance with the authority received from other persons, more than 50% the total number of votes attributable to voting shares (stakes) in the authorized (share) capital of each of these business entities (partnerships);
Ancestral relationship. A group of persons is comprised by an individual, his/her spouse, parents (including adoptive parents), children (including adopted children), brothers and sisters of the whole blood or brothers and sisters of the half blood.
Corporate and contractual relations. A group of persons is constituted by:
1) a business entity (partnership) and an individual or a legal entity if such individual or such legal entity on the basis of the constituent documents of this business entity (partnership) or the contract concluded with this business entity (partnership) has the right to provide this business entity (partnership) with binding instructions;
2) business entities (partnerships) in which the same individual or the same legal entity on the basis of the founding documents of these business entities (partnerships) or the contracts concluded with these business entities (partnerships) is entitled to give binding instructions to these business entities (partnerships);
Managerial relations. A group of persons includes:
1) a business entity and an individual or a legal entity, if such individual or such legal entity exercises the functions of the sole executive body of this business entity;
2) business entities in which the same individual or the same legal entity exercises the functions of the sole executive body;
Organizational relations. A group of persons is composed of persons who are members of the same financial and industrial group.
Relations of a mixed nature. A group of persons involves:
1) a business entity and an individual or a legal entity if, at the suggestion of such individual or such legal entity, a sole executive body of this business entity is appointed or elected;
2) business entities, the sole executive body of which was appointed or elected at the suggestion of the same individual or the same legal entity;
3) a business entity and an individual or a legal entity if, at the suggestion of such individual or such legal entity, more than 50% of the number of the collegial executive body or the board of directors (supervisory board) of this business entity are elected;
4) business entities in which more than 50% of the number of collegial executive body and (or) the board of directors (supervisory board) are elected at the suggestion of the same individual or the same legal entity;
5) business entities in which more than 50% of the number of collegial executive body and (or) the board of directors (supervisory board) are the same individuals;
These relations at first glance are the closest to management ones. However, the reasons according to which certain person has the authority to form the management bodies of another person may be very different, in particular property or contractual ones. Therefore, it seems appropriate to allocate these relations to an additional group of relations - mixed relations.
Other relationships. Separately, we should stop at clause 14 of part 1 of Article 9 of the Law on Protection of Competition. In accordance with it, a group of persons are persons, each of whom, under any of the grounds indicated in the Law, is included in the group of persons with the same person, as well as all other persons who are included with any such person in one group for any reason, any of the bases indicated in the Law.
|
