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On the instruction of the chairman of the Russian Federation Government, the Russian Federation Property Fund, in conjunction with the Ministries of Finance, Natural Resources, Industry and Science, and Taxes and Revenues, prepared a letter in which it insisted that the economic interest of the state had been upheld when the amicable settlement was concluded and that the sum in damages endorsed by the Court of Arbitration in Moscow was justified.
In consideration of this, and in effect supporting the Property Fund's position, the Ministry of Finance in a letter to the Procuracy General indicated with good reason that disputes over the market or other value of an asset should in accordance with the Federal Law "On valuations in the Russian Federation" be referred for consideration by a court of law.
As was reported to you earlier, the OAO Apatit shares were sold by ZAO Volna to a number of corporate entities that under existing civil law acquired them in good faith. The return of the shares to federal ownership is possible only if it can be proven that they were released by their owner under duress. To an enquiry by the Procuracy General, the Federal Security Service reported that it had no information of any affiliation between OAO Apatit and the acquirers of the shares. The Ministry of Internal Affairs likewise possesses no such information.
The outcome of efforts to resolve the situation regarding the return by ZAO Volna of the OAO Apatit shares was conveyed by the Russian Federation Property Fund to the chairman of the Russian Federation Government, Mr M.M. Kasyanov, who consented to the decision taken.
During the course of the current investigation, the argument that OAO Apatit and its contracting parties acted in breach of Russian Federation antitrust law was examined.
It was established that apatite concentrate is sold by OAO Apatit via Russian commercial structures that are not themselves producers of mineral fertiliser. OAO does not directly export its products. The profit margin on its product is between 6 and 34 per cent. The Ministry for Antimonopoly Policy considers these margins acceptable for enterprises in the mining and chemicals industries and does not request state action to adjust the conditions in which this business is carried out, as would be the case in the event of abuse of a dominant position.
In addition, it transpires from the information presented by the Ministry for Antimonopoly policy that complaints from the company OAO Akron that OAO Apatit had refused to enter into contracts with it had been examined by the Ministry in the proper procedure. But since the complainant failed to provide evidence in support of its assertions of breaches of legislation, under the Rules for Examination of Breaches of Antimonopoly Legislation (endorsed by the Ministry for Antimonopoly Policy as No 91 dated 25.07.96 and registered with the Ministry of Justice on 05.08.96), it was advised to apply in writing and attaching documentary evidence of breaches of legislation. However, the Ministry received no submission from commercial entities relating to anticompetitive conduct by OAO Apatit.
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