Monopolistic activity- these are actions (inaction) of economic entities that contradict the antimonopoly legislation, aimed at preventing, limiting or eliminating competition.
This definition is common to commodity and financial markets.
The unlawfulness of any offense lies in the violation of the norms of objective law and the subjective rights of others. Actions falling under monopolistic activity are considered illegal if they violate the instructions or prohibitions established by the rules of the antimonopoly law. Inaction is an offense if a person does not voluntarily fulfill the obligation imposed on him by the norm of the antimonopoly law.
Monopolistic activity violates both private and public rights and interests. First of all, this offense infringes on subjective rights individuals- the rights of consumers and entrepreneurs in the commodity and financial markets.
When qualifying certain monopolistic actions prohibited by antitrust laws, losses are sometimes difficult to determine. In this regard, the general definition of monopolistic activity does not contain an indication of losses as a consequence of this offense. To establish and prohibit monopolistic activities, it is not required to obligatorily establish the existence of losses specific entrepreneurs and consumers. At the same time, in order to apply to the offender a civil sanction in the form of compensation for losses, the establishment of the latter and a causal relationship is mandatory. These elements of the offense are also important when imposing measures of criminal liability for monopolistic activity in especially aggravating circumstances.
The subjects of this offense (offenders) are entrepreneurs - business entities and financial organizations, as well as a group of persons.
Types of monopolistic activities of business entities:
- individual behavior of a business entity in the form of abuse of its dominant position in the market;
- agreements (concerted actions) of business entities that restrict competition.
Unlawful activity of state authorities and local self-government bodies to restrict competition. State authorities, local authorities and their officials are not recognized as subjects of monopoly (dominant position) and competition in the market, and therefore the law does not mention them when defining these concepts.
The unlawful behavior of these bodies aimed at preventing, limiting or eliminating competition is socially dangerous due to the fact that these subjects use public authorities for the purpose of unlawful receipt of income or other privileges, violate the rights and legitimate interests of entrepreneurs, hinder fair competition.
Organ offenses are subdivided into individual acts and actions; agreements (concerted actions) that restrict competition.
Monopolistic activity- this is an abuse of a dominant position by an economic entity (group of persons), agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inaction) recognized in accordance with the law as monopolistic (Article 4 of the Competition Law).
Thus, monopolistic activity is qualified as an offense aimed at preventing, limiting or eliminating competition, characterized by a certain composition: an object, an objective side, a subject, a subjective side. At the same time, the Competition Law in some cases establishes a list of unconditional prohibitions on such activities (for example, the establishment of monopoly high (low) prices, the imposition of unfavorable contract terms on the counterparty, etc.), and in other cases it provides for exceptions that allow monopolistic activities based on the rules of rationality ( for example, when evaluating agreements and concerted actions).
So, based on the rules of rationality, agreements or concerted actions are permissible if they:
- - do not impose restrictions on their participants or third parties that do not correspond to the achievement of the goals of such agreements and actions;
- - do not create an opportunity for individuals to eliminate competition in the relevant product market;
- - result in the improvement of the production (sale) of goods or the stimulation of technical (economic) progress or an increase in the competitiveness of goods in the world market;
- - result in consumers receiving advantages (benefits) commensurate with the advantages (benefits) received by business entities as a result of such agreements and actions (Article 13).
The Competition Law identifies the following components of monopolistic activity:
1) abuse by a business entity (group of persons) of its dominant position in the market(Article 10 of the Competition Law). An offense is the activity of an economic entity (group of persons) that meets simultaneously two conditions: an economic entity occupies a dominant position (quantitative feature) and abuses its position, restricting competition (qualitative feature): for example, it establishes a monopoly high or monopoly low price goods, withdraws goods from circulation in order to create or maintain a deficit in the market or increase prices; imposes unfavorable terms of the contract on the counterparty, commits other prohibited actions.
The burden of proving the dominant position of an economic entity in the market rests with the FAS Russia, which must determine the type of market, the composition of the sellers and buyers participating in it, investigate the structure of the market and its openness to international and interregional trade 1. If an economic entity disagrees with the recognition of its position as dominant, the arbitration court assesses the observance of the FAS Russia with the rules for establishing this fact. The actions of an economic entity occupying a dominant position in the market can be recognized as legitimate if it proves that the positive effect of its actions exceeds the negative consequences for this commodity market (Article 13).
FAS Russia maintains the Register of business entities with a market share of more than 35% for a certain product. The decision to include an economic entity in the Register may be appealed to an arbitration court. The registry is open;
2) agreements between economic entities - competitors, occupying a dominant position in the market for a certain product, aimed at restricting competition, are recognized as a cartel and are prohibited. These include, for example, agreements aimed at setting, reducing or maintaining prices; on the division of the commodity market on any basis (territorial, composition of participants, volume of products sold or purchased), etc. Such agreements are invalidated if business entities do not prove that the positive effect of their actions will exceed the negative consequences for the market (Art. 11 Competition Law).
Agreements are allowed between economic entities that are not competing with each other and are in relation to each other a seller and a buyer (vertical agreements) (for example, commercial concession agreements, agreements of economic entities, the share of each of which on the product market does not exceed 20%, some other agreements and concerted action (Articles 12 and 13 of the Competition Law)).
In other countries, cartels are also prohibited, although the criteria for classifying agreements as cartels in different countries may vary. For example, in the United States, an anticompetitive agreement is any contract, association or conspiracy to restrict competition. In Germany, France and Great Britain, horizontal (cartel agreements) and vertical (agreements on resale prices, on doing business only with certain enterprises, binding agreements, etc.) restrictions on competition are prohibited. In Japan, the criterion for assessing an agreement as anticompetitive is the excessive restriction of competition. The EU prohibits all agreements between enterprises that may harm trade between the Member States and have as their purpose or effect the restriction of competition within the common market;
- 3) concerted action economic entities - competitors are aimed at restricting competition (for example, at establishing, reducing or maintaining prices; at dividing the commodity market according to any criterion (territorial, composition of participants, volume of products sold or purchased), etc.). Such agreements are recognized as invalid if economic entities do not prove that the positive effect of their action will exceed the negative consequences for the market (Art. 11 1 of the Competition Law);
- 4) acts and actions (inaction) federal executive bodies, bodies state power subjects of the Federation, bodies local government, organizations involved in the provision of government and municipal services, state extra-budgetary funds, the Bank of Russia may lead to restriction of competition, with the exception of cases provided for by federal law (Article 15). In particular, it is prohibited to impose restrictions on the creation of new economic entities in any field of activity, unreasonable obstruction of the activities of economic entities, the establishment of bans on the sale (purchase) of goods from one region. Russian Federation in another, etc.
A guarantee of ensuring competition is also the prohibition on combining the functions of government bodies and economic entities, with the exception of cases stipulated by federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation;
- 5) agreements or concerted actions between federal executive authorities, state authorities of the constituent entities of the Federation, local self-government bodies, organizations involved in the provision of state and municipal services, state extra-budgetary funds, the Bank of Russia or between them and business entities, limiting competition by increasing, reducing or maintaining prices, section market, etc. (Article 16 of the Law on Competition);
- 6) actions of the organizers of the auction, which may lead to restriction of competition when holding tenders, requesting price quotations for goods, requesting proposals, concluding agreements with financial institutions and agreements in relation to state and municipal property, including coordination by the organizers of the auction of the activities of the participants in the auction; creating advantages for any of the bidders, restricting access to trading, etc. (Article 17).
The conclusion of agreements providing for the transfer of ownership or use rights in relation to state or municipal property (lease, trust management of property) may be carried out only following the results of tenders or auctions for the right to conclude such agreements, except for cases provided for by law (Article 17 1 ).
Conclusion of contracts with financial institutions for the provision of financial services (attraction Money in deposits, opening and maintaining bank accounts, maintaining a register of owners of securities, trust management of securities, non-state pension provision) must be carried out through an open tender or auction in accordance with the provisions of the Federal Law of April 5, 2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."
Violation of these rules is the basis for the court's recognition of the relevant transactions or auctions as invalid, including at the suit of the antimonopoly authority;
7) illegally granted state or municipal preferences(vv. 20 and 21). Preferences are recognized as legal if they are provided in order to ensure life in the regions of the Far North, conduct basic research, protection environment, development of culture, production of agricultural products, support of small businesses carrying out priority activities, social protection of the population, in particular support of unemployed citizens.
It is also allowed to provide property or other objects of civil rights based on the results of tenders, assign state or municipal property to business entities on the basis of the right of economic management or operational management, transfer state or municipal property to individuals in order to eliminate the consequences emergencies or military action, the provision of property or other objects of civil rights on the basis of federal law or a court decision that has entered into legal force.
If the acts on the provision of state or municipal preference adopted in violation of the Law on Competition, they can be recognized by the court as invalid in whole or in part, and the property transferred under them - subject to return to state or municipal ownership;
- 8) unfair competition, i.e., any actions of business entities (groups of persons) that are aimed at obtaining benefits in entrepreneurial activity, contradict the legislation, business customs, requirements of integrity, rationality and fairness and may cause losses to other business entities - competitors or damage them business reputation(Article 4 of the Competition Law). An approximate list of the compositions of unfair competition is given in Art. 14 of this Law:
- - dissemination of false, inaccurate or distorted information that can cause losses to an economic entity or damage its business reputation (discrediting, defamation);
- - misleading consumers about the nature, method and place of manufacture, consumer properties, the quality and quantity of the product or its manufacturers;
- - incorrect comparison by an economic entity of the goods produced or sold by it with the goods of other economic entities;
- - sale of goods with illegal use of the results of intellectual activity and equivalent means of individualization legal entity, its products, works, services (company name, trademark, etc.);
- - illegal receipt, use, disclosure of information constituting commercial, official and other secrets protected by law;
- - inappropriate advertising, that is, unfair, unreliable, unethical, knowingly false and other advertising, in which violations of the requirements established by law for its content, time, place and method of distribution are allowed. Control in the field of advertising is entrusted to the antimonopoly authorities (Articles 2, 6, 33 of the Law "On Advertising").
The legislation of foreign countries also prohibits unfair competition: Ch. 15 U.S.C. Trade Protection Act and commercial activities Against Illegal Restrictions and Monopoly of 1890; Federal Trade Commission Act 1914; Art. 1382, 1383 FGK, Ordinance No. 86-1243 on the freedom of setting prices and free competition in 1986; Germany's Unfair Competition Act 1909; the federal law Switzerland on Unfair Competition 1986; Japan's Law on the Prohibition of Private Monopoly and Maintenance of Fair Trade of 1947; Art. 2598-2601 Civil Code of Italy; UK Competition Act 1980
The legislation of most countries does not contain a definition of the concept of unfair competition, but operates with a list of specific types of competitive actions recognized as unfair. An exception is, for example, the Swiss Federal Law on Unfair Competition 1986, which contains, along with the list of unfair competitive actions, a general definition of unfair competition - any behavior or commercial practice that are misleading or otherwise contrary to good trading practice and occur in relations between competitors or in the relations of business entities with a clientele (Art. 2).
Unfair competition under the laws of most foreign countries entails liability: civil (damages), administrative (fine), criminal (up to imprisonment).
- See: K. Yu. Totyev, Competition and Monopolies. Legal Aspects regulation, M. 1996, pp. 68-72.
- See: Entrepreneurial (economic) law / ed. O. M. Oleinik. S. 481-498.
- See the letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 30, 1998 No. 32 “Review of the practice of resolving disputes related to the application of antimonopoly legislation”.
- See Resolution of the Government of the Russian Federation of December 19, 2007 No. 896.
business law monopoly state
Monopolistic activity is a legal category that means the abuse of a dominant position by an economic entity, a group of persons, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions recognized in accordance with federal laws as monopolistic activities.
The main legal acts regulating monopolistic activities:
1. The Constitution of the Russian Federation (Article 34).
2. The Civil Code of the Russian Federation (part one) dated 30.11.1994 No. 51-FZ (article 10).
3. Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition".
4. Federal Law of 17.08.1995 No. 147-FZ "On Natural Monopolies".
The essence and content of the monopoly position is revealed through the category of the dominant position of the business entity in the market. According to Art. 5 of the Federal Law "On Protection of Competition", the dominant position is recognized as the position of an economic entity (group of persons) or several economic entities (groups of persons) on the market of a certain product, giving such an economic entity (group of persons) or such economic entities (groups of persons) the opportunity to provide decisive Influence at general terms and Conditions circulation of goods on the relevant product market, and (or) remove other economic entities from this product market, and (or) hinder access to this product market for other business entities. On the protection of competition: Federal Law of July 26, 2006 No. 135-FZ (as amended on December 28, 2013) // Collected Legislation of the Russian Federation of July 31, 2006. - No. 31 (1 hour). - Art. 3434.
The dominant position is recognized as the position of an economic entity (with the exception of a financial organization):
The share of which on the market of a certain product exceeds 50%, unless, when considering a case on violation of antimonopoly legislation or when exercising state control over economic concentration, it is not established that, despite the excess of the specified value, the position of an economic entity in the product market is not dominant;
The share of which in the market of a certain product is less than 50%, if the dominant position of such an economic entity is established by the antimonopoly authority based on the unchanged or subject to insignificant changes in the share of an economic entity in the product market, the relative size of shares in this product market owned by competitors, the possibility of access to this the product market of new competitors or based on other criteria characterizing the product market.
The dominant position is also recognized as the position of each economic entity from several economic entities (with the exception of a financial organization), in relation to which the following conditions are met in aggregate:
The total share of no more than three economic entities, the share of each of which is greater than the shares of other economic entities in the relevant product market, exceeds 50%, or the total share of no more than five economic entities, the share of each of which is greater than the shares of other economic entities in the relevant product market , exceeds 70% (this regulation does not apply if the share of at least one of the specified economic entities is less than 8%);
Over a long period (for at least one year or, if such a period is less than one year, during the existence of the relevant product market), the relative sizes of the shares of economic entities are unchanged or subject to minor changes, as well as access to the relevant product market for new competitors are difficult;
A product sold or purchased by business entities cannot be replaced by another product when consumed (including when consumed for production purposes), an increase in the price of a product does not cause a decrease in demand for this product corresponding to such an increase, information on the price, conditions of sale or purchase of this product available on the relevant product market to an indefinite circle of persons.
The dominant position is also recognized as the position of an economic entity - a subject of natural monopoly on the commodity market in a state of natural monopoly.
Federal laws may establish cases of recognition of the dominant position of an economic entity whose share in the market for a particular product is less than 35%.
The conditions for recognizing the dominant position of a financial institution (with the exception of a credit institution) are established by the Government of the Russian Federation. The conditions for recognizing the dominant position of a credit institution, taking into account the restrictions provided for by this Federal Law, are established by the Government of the Russian Federation in agreement with the Central Bank of the Russian Federation.
The danger of market dominance for trade is that market dominance often leads to monopoly. Abuse of dominant position can only be recognized in court. The dominant position of an economic entity is established by the antimonopoly authority in case of violation of the antimonopoly legislation.
Actions (inaction) of a dominant economic entity are prohibited, the result of which is or may be the prevention, restriction, elimination of competition and (or) infringement of the interests of other persons, including in accordance with Part 1 of Art. 10 of the Federal Law "On Protection of Competition"):
1) establishment, maintenance of a monopoly high or monopoly low price of goods;
2) withdrawal of goods from circulation, if the result of such withdrawal was an increase in the price of the goods;
3) imposing on the counterparty the terms of the contract that are unfavorable for him or not related to the subject of the contract;
4) economically or technologically unreasonable reduction or termination of production of goods, if there is a demand for this product or orders are placed for its supply, if there is a possibility of it cost-effective production, as well as if such a reduction or termination of the production of goods is not directly provided for by federal laws, regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation, authorized federal executive bodies or judicial acts;
5) economically or technologically unjustified refusal or evasion from concluding an agreement with individual buyers in the event of the possibility of producing or supplying the relevant product, as well as in the event that such a refusal or such evasion is not directly provided for by federal laws, regulatory legal acts of the President of the Russian Federation, the Government RF, authorized federal executive bodies or judicial acts;
6) economically, technologically or otherwise unreasonable establishment different prices for the same product, unless otherwise provided by federal law;
7) establishment by a financial institution of an unreasonably high or unreasonably low price of a financial service;
8) creation of discriminatory conditions;
9) creating obstacles to access to the product market or exit from the product market for other economic entities;
10) violation of the pricing procedure established by regulatory legal acts.
Thus, the list of types of monopolistic activities is not exhaustive and may include any actions recognized as monopolistic in accordance with federal laws.
There are the following main types of monopolies.
1. Monopolies created as a result of the direct regulatory influence of the state, which are created at the will of the state in order to ensure state and public interests. They are protected from competition from business entities that are not subjects of these monopolies.
There are the following types of monopolies of this type: state monopolies; natural monopolies.
A state monopoly is understood as a monopoly created in accordance with the legislation of the Russian Federation, which defines the commodity boundaries of a monopoly market, a monopoly entity (monopolist), forms of control and regulation of its activities, as well as the competence of a controlling body.
State monopolies are created in order to protect the economic interests of the state and consumers, strengthen security, foreign trade, military-political positions of the state, etc. These monopolies are imperatively established on the basis of legislative norms and are mainly aimed at ensuring public law interests.
The exercise of the state monopoly is regulated by federal regulations.
Natural monopoly is the state of the commodity market, in which the satisfaction of demand in this market is more efficient in the absence of competition due to the technological features of production (due to a significant decrease in production costs per unit of goods as the volume of production increases), and the goods produced by the subjects of natural monopoly are not can be replaced in consumption by other goods, in connection with which the demand in this commodity market for goods produced by the subjects of natural monopolies is less dependent on changes in the price of this product than the demand for other types of goods (Article 3 of the Federal Law "On natural monopolies "). On natural monopolies: Federal Law of 17.08.1995 No. 147-FZ (as amended on 30.12.2012) // Collected Legislation of the Russian Federation of 21.08.1995. - No. 34. - Art. 3426.
The list of areas of activity in which the natural monopoly regime is introduced is contained in Art. 4 Federal Law "On Natural Monopolies":
Transportation of oil and oil products through main pipelines;
Rail transportation;
Services of transport terminals, ports, airports;
Public telecommunication and public postal services;
Electricity transmission services;
Operational dispatch management services in the electric power industry;
Heat transmission services;
Operational dispatch management services in the electric power industry
Services for the use of the infrastructure of inland waterways.
In these areas of entrepreneurial activity, the state introduces a special legal regime for regulating and controlling the activities of subjects of natural monopolies. Bodies regulating natural monopolies may apply the following methods of regulating the activities of subjects of natural monopolies:
a) price regulation, carried out by determining (setting) prices (tariffs) or their maximum level;
b) determination of consumers subject to compulsory service, and (or) establishment of a minimum level of their provision in case of impossibility to satisfy in full the needs for goods produced (sold) by a natural monopoly entity, taking into account the need to protect the rights and legitimate interests of citizens, ensure the security of the state , nature protection and cultural values (article 6 of the Federal Law "On natural monopolies").
2. Monopolies formed as a result of independent actions of business entities without direct regulatory influence of the state may appear in connection with the victory in fair competition over a certain business entity and the exit from the market of other competitors, through the concentration of capitals and amalgamation of business entities, underdevelopment of the market, etc. ... In this situation, the business entity for a certain time becomes the only manufacturer (seller) of a certain product. At the same time, there are no legal restrictions on competition, other entities have the right to carry out similar entrepreneurial activities in this market and compete with each other.
3. Monopolies arising from the possession of exclusive rights may also arise from the possession (use) by a business entity of exclusive rights to the results of intellectual activity and equivalent means of individualization of an entrepreneur, products (works, services). These are the rights to inventions, utility models, industrial designs, trademarks, service marks, appellations of origin of goods, trade names, etc. (Clause 1, Article 138 of the Civil Code of the Russian Federation).
A business entity may hold a monopoly position in the market for the use of these objects, based on the very fact of legal recognition of the status of their owner (for example, holders of patents for inventions, industrial designs or certificates of registration of trademarks). The possession of the rights to such objects puts the subject of entrepreneurial activity in a position in which the use of these objects entirely depends only on his discretion.
The possibility of occupying a monopoly (dominant) position on the market due to the possession of these rights is associated, first of all, with the monopoly nature of these rights themselves to these intangible benefits (objects of industrial property law). The owner has the opportunity to monopoly possess the object, both using it in his activities and without doing it (which is a positive side of the law), as well as prohibiting all other persons from using it without a specially issued permission or license ( negative side rights). The ability of the copyright holder to remove all other persons from the use of industrial property objects gives entrepreneurs real competitive advantages and a real opportunity to occupy a monopoly (dominant) position in the market.
According to its types, monopolistic activity is divided into: 1) individual; 2) collective; 3) contractual; 4) non-contractual.
Individual monopolistic activity is manifested in the abuse of a dominant position in the market for a certain type of goods. Collective monopolistic activity is manifested in the conclusion of agreements. Agreement - an agreement in writing, contained in a document or several documents, as well as an agreement orally.
Monopolistic activity is an abuse of dominant position by an economic entity (group of persons), agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inaction) recognized as monopolistic in accordance with federal laws (Art.
4 of the Competition Law).
From the above definition it follows:
1) monopolistic activity is an offense aimed at preventing, restricting or eliminating
1 See: Order of the FAS Russia dated December 22, 2006 No. 337 "On approval of the forms of acts adopted by the commission for considering the case on violation of the antimonopoly legislation" // Russian newspaper... 2007.31 Jan.
330 Section III. Public organization entrepreneurial activity
reduction of competition. At the same time, the Competition Law in some cases establishes a list of prohibitions on such activities, from which no exceptions can be made either by the antimonopoly authority or by the court (for example, the establishment of monopoly high (low) prices, the imposition of unfavorable contract terms on the counterparty, etc.), and in in other cases, allows exceptions that can be made on the basis of the rules of reasonableness when deciding whether the anti-monopoly authority prohibits or authorizes any type of monopolistic activity (for example, in agreements and concerted actions).
As a rule of rationality, the Competition Law in Art. 13 defines the EU's four conditions for the admissibility of agreements and concerted action: -
they do not impose restrictions on participants in such actions or third parties that do not correspond to the achievement of the goals of such actions; -
they do not create an opportunity for individuals to eliminate competition in the relevant product market; -
they result in improving the production (sale) of goods or stimulating technical (economic) progress or increasing the competitiveness of goods in the world market; -
they result in consumers receiving advantages (benefits) commensurate with the advantages (benefits) received by business entities as a result of such actions;
2) monopolistic activity is characterized through the composition of the offense: object, objective side, subject and subjective side. The following structures of monopolistic activity are distinguished: abuse by an economic entity of its dominant position in the market for a certain product; agreements or concerted actions of business entities on the market for a certain product that restrict competition; acts and actions (inaction) of executive authorities and local self-government aimed at restricting competition; agreements or concerted actions of executive authorities and
1 See: K. Yu. Totyev, Competition and Monopolies. Legal aspects of regulation. M., 1996.S. 68 - 72.
local government that restrict competition; actions that may lead to the prevention, restriction or elimination of competition in the course of tenders and the selection of financial institutions; illegal provision of state or municipal aid; unfair competition.
It is prohibited for a business entity (group of persons) to abuse its dominant position in the market (Art.
10 of the Competition Law).
An offense is the activity of an economic entity (group of persons) that meets simultaneously two conditions: 1)
an economic entity occupies a dominant position (quantitative feature); 2)
abuses his position, restricting competition (a qualitative feature), for example, sets a monopoly high or monopoly low price of goods, withdraws goods from circulation in order to create or maintain a deficit in the market or increase prices, impose unfavorable contract terms on a counterparty, and commits other prohibited actions.
The burden of proving the dominant position of an economic entity in the market rests with the FAS Russia. Establishing the fact of a dominant position, the FAS Russia must determine the type of market, the composition of the sellers and buyers participating in it, investigate the structure of the market and its openness to international and interregional trade. If an economic entity disagrees with the recognition of its position as dominant, the arbitration court assesses the observance of FAS Ros-
these rules for establishing this fact.
FAS Russia maintains the Register of business entities with a market share of more than 35% for a certain product. Rules for the formation and maintenance of the specified register
1007, No. 898. Decision to include a business entity
1 For more details, see: Entrepreneurial (economic) law / Otv. ed. O. M. Oleinik: In 2 volumes, pp. 481-498.
2 See: Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 30, 1998 No. 32 "Review of the practice of resolving disputes related to the application of antimonopoly legislation" // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. No. 5.P. 88.
3 SZ RF. 2007. No. 52. Art. 6480.
332 Section III. Public organization of entrepreneurial activity
the register can be appealed to the arbitration court. The register is open and published annually as of January 1.
In the cases provided for by the Law on Competition, such actions of an economic entity can be recognized as legitimate if it proves that the positive effect of its actions exceeds the negative consequences for this product market (Article 13).
Agreements or concerted actions of economic entities holding a dominant position in the market for a certain product aimed at restricting competition (Article 11 of the Competition Law) are prohibited, for example, agreements aimed at establishing, reducing or maintaining prices; to the division of the commodity market on any basis (territorial, composition of participants, the volume of products sold or purchased), etc. Such agreements are prohibited and, in the prescribed manner, are invalidated if business entities do not prove that the positive effect of their actions will exceed the negative consequences for market.
Vertical agreements are allowed, i.e. agreements between economic entities that do not compete with each other and are in relation to each other a seller and a buyer, for example, commercial concession agreements, agreements of economic entities, the share of each of which on the product market does not exceed 20%, as well as some other agreements and concerted actions (Articles 12, 13 of the Competition Law).
The activity of economic entities to coordinate the economic activities of other economic entities, which may result in restriction of competition, is also considered as monopolistic. Such activity is prohibited and is the basis for judicial liquidation of the named organizations at the suit of the antimonopoly authority (Article 10 of the Law on Competition).
Anticompetitive agreements are also prohibited under the law of foreign countries. At the same time, the criteria for classifying agreements as anticompetitive in different countries may differ. In the United States, an anti-competitive agreement is any contract, association, or conspiracy to restrict competition. The law does not provide for a list of such restrictions, they are
Chapter 9. Antitrust Regulation
are distributed by judicial practice. In Germany, France and Great Britain, horizontal (cartel agreements of enterprises) and vertical (agreements on resale prices, on doing business only with certain enterprises, binding contracts, etc.) restrictions on competition are prohibited. In Japan, the criterion for assessing an agreement as anticompetitive is the excessive restriction of competition. The EU prohibits all agreements between enterprises, decisions of associations of enterprises and concerted actions that may harm trade between member states and which aim or effect to prevent, restrict or distort competition within the common market. An indicative list of such violations is provided.
A feature of the Russian legislation on the protection of competition is the prohibition of federal executive authorities, state authorities of the constituent entities of the Russian Federation, local governments, state extra-budgetary funds, the Bank of Russia to adopt acts and take actions (inaction) that may lead to restriction of competition, except as otherwise provided for. federal law (Article 15 of the Competition Law).
In particular, it is prohibited to impose restrictions on the creation of new economic entities in any field of activity; unjustified obstruction of the activities of economic entities; the establishment of bans on the sale (purchase) of goods from one region of the Russian Federation to another, etc.
A guarantee of ensuring competition is also the prohibition on combining the functions of government bodies and the functions of economic entities, with the exception of cases stipulated by federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation.
Agreements or concerted actions between federal executive authorities, state authorities of the constituent entities of the Russian Federation, local authorities are prohibited.
1 Cartel (French cartel) is one of the main forms of capitalist monopolies, an association of entrepreneurs, whose members agree on the size of production, sales markets, terms of sale, prices, payment terms, etc., while maintaining production and commercial independence.
334 Section III. Public organization of entrepreneurial activity
management, state extra-budgetary funds, the Bank of Russia or between them and business entities, limiting competition by raising, lowering or maintaining prices; division of the market, etc. (Article 16 of the Law on Competition). Such agreements are prohibited and invalidated in accordance with the established procedure.
Actions that may lead to the prevention, restriction or elimination of competition during the bidding are prohibited, including the coordination of the bidders' activities by the bidders; creating advantages for any of the bidders, restricting access to bidding, etc. (Article 17 of the Law on Competition).
Federal executive authorities, executive authorities of the constituent entities of the Russian Federation, local governments, state extra-budgetary funds, natural monopoly entities select financial organizations for the provision of financial services (services of credit institutions, professional participants in the securities market, lessors, insurers) by holding an open tender or open auction in accordance with the provisions of the Federal Law of July 21, 2005 No. 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs."
Violation of these rules is the basis for the court's recognition of the relevant transactions or auctions as invalid, including at the suit of the antimonopoly authority.
The illegal provision of state or municipal aid is prohibited (Articles 20 - 21 of the Competition Law). Such assistance can be provided in order to: ensure life in the regions of the Far North; conducting fundamental research; environmental protection; cultural development; agricultural production; support of small businesses carrying out priority activities; social service population, in particular support of unemployed citizens.
It is not a state or municipal aid, and therefore it is allowed: granting an advantage
1 SZ RF. 2005. No. 30. Part I. Art. 3105.
to an individual on the basis of federal law, judicial act, auction results; assignment of state or municipal property to business entities on the basis of the right of economic management or operational management; transfer of state or municipal property to individuals in order to eliminate the consequences of emergencies or military actions; granting to individuals the budgetary credit, subsidies, subventions, budgetary investments provided for by the law on the budget.
The Competition Law provides for the procedure for the provision of state or municipal aid and the consequences of its violation. In particular, if acts on the provision of such assistance are adopted in violation of the Competition Law, they may be recognized by the court as invalid in whole or in part, and the property transferred under them may be subject to return to state or municipal ownership.
Unfair competition is prohibited - these are any actions of economic entities (groups of persons) that are aimed at gaining advantages in entrepreneurial activity, contradict the legislation, business customs, requirements of integrity, rationality and fairness and may cause losses to other business entities - competitors or damage their business reputation (Article 4 of the Competition Law). As an offense, unfair competition is prohibited. An approximate list of the compositions of unfair competition is given in Art. 14 of the Competition Law: 1)
dissemination of false, inaccurate or distorted information that can cause losses to an economic entity or damage its business reputation (discredit, defamation); 2)
misleading consumers about the nature, method and place of manufacture, consumer properties, quality and quantity of goods or their manufacturers; 3)
incorrect comparison by an economic entity of the goods produced or sold by it with the goods of other economic entities; 4)
sale of goods with illegal use of the results of intellectual activity and equated means of individualization of a legal entity, its products, works, services (company name, trademark, etc.);
5) illegal receipt, use, disclosure of information constituting commercial, official and other secrets protected by law.
Part 1 of Art. 34 of the Constitution of the Russian Federation stipulates that "everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law."
This is also stated in Part 2 of Art. 1 of the Civil Code of the Russian Federation, according to which citizens ( individuals) and legal entities acquire and exercise their civil rights by their own will and in their interest; they are free to establish their rights and obligations on the basis of the contract and to determine any terms of the contract that do not contradict the law. In essence, the protection of competition is referred to in Part 1 of Art. 1 of the Civil Code of the Russian Federation, which provides that civil legislation is based on the recognition of the equality of participants in the relations regulated by it. In accordance with Part 1 of Art. 10 of the Civil Code of the Russian Federation, actions of citizens and legal entities carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms are not allowed; the use of civil rights in order to restrict competition, as well as abuse of a dominant position in the market, is not allowed.
In Russian and foreign science, many definitions of economic activity proper are given. Scholars and specialists in the field of business law, such as, for example, E.P. Gubin, P.G. Lakhno and others, considered economic activity as "an attribute of the existence of commodity production of a market organization of the economy, associated with the process of reproduction of material goods, embodied in the creation (production) of goods (products), in the performance of work, the provision of services of a material nature and (or) their distribution and (or) use (distribution, exchange, consumption ".
Competition is an objectively necessary regulatory factor of a market economy based on freedom of entrepreneurship, but it is the protection of competition that is the most important condition for the development of the market competition by limiting the abuse of free enterprise.
Relations related to the protection of competition, including the prevention and suppression of monopolistic activities and unfair competition, in which economic entities participate - Russian and foreign legal entities, organizations, federal executive authorities, state authorities of the constituent entities of the Russian Federation, local governments, etc. bodies or organizations performing their functions, as well as off-budget funds, the Bank of Russia, individuals, including individual entrepreneurs, are public by nature. The norms governing them are aimed at restricting freedom of entrepreneurship in order to ensure the common good - competition.
Business entities entering into contractual relations with counterparties, manufacturers, importers, etc., must comply with the restrictions (prohibitions) of the antimonopoly legislation of the Russian Federation.
An economic entity means individual entrepreneur, commercial organization, as well as non-profit organization carrying out activities that bring it income (paragraph 5 of article 4 of the Law "On Protection of Competition").
Chapter two (Articles 10-14) of the Federal Law "On Protection of Competition" establishes bans on abuse of dominant position by an economic entity, on agreements restricting competition between economic entities, including their concerted actions to restrict competition, on unfair competition.
Established Art. 10, 11, 11.1 and 14 of the Law, prohibitions can be subdivided into unconditional prohibitions, prohibitions on the conclusion of "vertical" agreements, "conditional" (agreements with a condition) prohibitions.
Unconditional prohibitions apply to actions (inaction) of an economic entity occupying a dominant position, the result of which is or may be the prevention, restriction, elimination of competition and (or) infringement of the interests of other persons, including such actions (inaction) that are provided for in Part 1 of Art. ... 10 of the Federal Law "On Protection of Competition", namely: the establishment, maintenance of a monopoly high or monopoly low price of goods, withdrawal of goods from circulation, if the result of such withdrawal was an increase in the price of goods, the imposition of contract terms on the counterparty that are unfavorable for him or not related to the subject contracts (economically or technologically unjustified and (or) not directly provided for by federal laws and other regulatory legal acts) and others.
Abuse of a dominant position is a special case of abuse of rights.
According to Part 1 of Art. 10 of the Civil Code of the Russian Federation "the exercise of civil rights is not allowed solely with the intention of causing harm to another person, actions bypassing the law with an unlawful purpose, as well as other knowingly unfair exercise of civil rights (abuse of law). It is not allowed to use civil rights in order to restrict competition, and also abuse of dominant market position. "
An economic entity in accordance with Part 2 of Art. 10 of the Federal Law "On Protection of Competition" has the right to provide evidence that his actions (inaction) falling under clauses 4, 8 and 9 of Part 1 of Art. 10 of the Law can be recognized as admissible in accordance with the requirements of Part 1 of Art. 13 of the Law.
To qualify the behavior of an economic entity as an abuse of a dominant position, the antimonopoly authority establishes the fact of the dominance of an economic entity, determines the subject of the offense, and actions within groups of persons can also be regarded as abuse of a dominant position (part 2 of article 9 of the Law), confirms the action or inaction of the economic entity to which the ban is addressed, checks the fact of admissibility of limits for the exercise by counterparties of their rights, the imposition of unreasonable restrictions on counterparties or the presence of unreasonable conditions for the exercise by counterparties of their rights (clause 4 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30, 2008 N 30 "On some issues arising in connection with the application of antimonopoly legislation by arbitration courts "), the reasonableness of certain manifestations of the behavior of an economic entity, establishes the circle of persons who are subject to the consequences of the unlawful behavior of the obliged entity, cons It refers to the onset of negative consequences or the possibility of their occurrence as a result of the unlawful action of the obliged subject.
It should be noted that Part 4 of Art. 10 of the Law does not extend the application of norms (prohibitions) on abuse of a dominant position to actions to exercise exclusive rights to the results of intellectual activity and the means of individualization of a legal entity equated to them, means of individualization of products, works or services.
The specified rule of law is based on Art. 1229 of the Civil Code of the Russian Federation, according to which "a citizen or legal entity that has the exclusive right to the result of intellectual activity or to a means of individualization (copyright holder) has the right to use such a result or such means at his own discretion in any way that does not contradict the law. The copyright holder may, at his discretion, authorize or prohibit other persons from using the result of intellectual activity or means of individualization. The absence of a prohibition is not considered consent (permission). "
Unconditional prohibitions, according to Part 1 of Art. 11 of the Law also apply to agreements between competing economic entities, i.e. between economic entities selling goods on one product market ("horizontal" agreements).
The consequences of such agreements lead or may lead to such restriction of competition as the establishment or maintenance of prices (tariffs), discounts, surcharges (surcharges) and (or) markups; increase, decrease or maintenance of prices at the auctions; division of the commodity market on a territorial basis, the volume of sales or purchases of goods, the range of goods sold or the composition of sellers and buyers (customers); reduction or termination of production of goods, as well as refusal to conclude contracts with certain sellers or buyers (customers).
Prohibited on the basis of Part 3 of Art. 11 of the Law, agreements between economic entities that are participants in the wholesale and (or) retail electricity (capacity) markets, commercial infrastructure organizations, technological infrastructure organizations, network organizations, if such agreements lead to price manipulation in the wholesale and (or) retail markets electrical energy (power).
It is prohibited (according to part 2 of article 11 of the Law) such "vertical" agreements between economic entities that lead or may lead to the establishment of the resale price of the goods, unless the seller sets the maximum resale price of the goods for the buyer, as well as which provide for an obligation the buyer not to sell the goods of an economic entity that is a competitor of the seller, and this prohibition does not apply to agreements on the organization by the buyer of the sale of goods under a trademark or other means of individualization of the seller or manufacturer.
The participants in "vertical" agreements operate in different product markets and do not compete directly with each other. Therefore, the list of negative consequences of the anticompetitive agreements they conclude is much smaller than in relation to other "horizontal" agreements.
The ban on the conclusion of "vertical" agreements, provided for in Part 2 of Art. 11 of the Law does not apply to agreements on the organization by the buyer of the sale of goods under his own trademark or other means of individualization of the seller or manufacturer (part 9 of Article 11 of the Law). Moreover, part 2 of Art. 1484 of the Civil Code of the Russian Federation, for example, in relation to the exclusive right to a trademark, directly stipulates that the exclusive right of the copyright holder to a trademark can be exercised to individualize goods, works, services in respect of which the trademark is registered.
The admissibility of "vertical" relations is provided for in Art. 12 of the Law and allows to consider as admissible agreements made in writing, which are contracts of commercial concession. The exception is made by "vertical" agreements between financial institutions, which is due to their legal status and restrictions on the implementation of the relevant activities.
In addition, "vertical" agreements are allowed between economic entities, the share of each of which in any product market does not exceed 20%.
"Conditional" prohibitions apply to such agreements that set a number of conditions for the counterparty that subsequently lead or may lead to restriction of competition. To such agreements in accordance with Part 4 of Art. 11 of the Law include, for example, agreements on the imposition of contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract (unreasonable requirements for the transfer of financial resources, other property, including property rights, as well as consent to conclude an agreement subject to the introduction of provisions into it regarding goods in which the counterparty is not interested, and other requirements.
It should be noted that the concept of an agreement as an agreement in oral or written form contained in documents or several documents does not coincide with the concept of a contract used in civil law. According to paragraph 1 of Art. 420 of the Civil Code of the Russian Federation, an agreement is an agreement between two or more persons on the establishment, change or termination of civil rights and obligations. Therefore, any contract is an agreement, but not any agreement is a contract.
Agreements from the point of view of antitrust law represent a more voluminous category, since they can both establish, change or terminate the rights and obligations of the parties, and only record the intentions of the parties regarding the future behavior or actions of each of them in relation to themselves and / or third parties.
Revealing the compliance or inconsistency of a particular agreement with antimonopoly legislation is possible only by analyzing the impact of the agreement on the market behavior of the parties.
In the Russian Federation, in accordance with clause 3.8 of the Procedure for analyzing the state of competition in the product market, approved by Order of the FAS Russia dated April 28, 2010 N 220, when identifying interchangeable goods, a "hypothetical monopolist test" can be used (foreign antimonopoly authorities use a test " SSNIP "- a small but significant and stable price increase, that is, a test of a hypothetical monopolist), which makes it possible to determine the product boundaries of the product market by identifying the preferences of purchasers of goods to replace one with another, provided that the price increases only for one of them.
The prohibition on agreements restricting competition does not apply to agreements between economic entities belonging to the same group of persons if one of such economic entities has established control over another economic entity or if such economic entities are under the control of one person, with the exception of agreements between economic entities, carrying out types of activities, the simultaneous implementation of which by one economic entity is not allowed in accordance with the legislation of the Russian Federation.
A ban on concerted actions of business entities that restrict competition is provided for in parts 1 - 3 of Art. 11.1 of the Law "On Protection of Competition".
The concept of concerted actions as a special type of anticompetitive behavior other than an agreement is applicable, for example, to price manipulation in the wholesale and (or) retail electricity (capacity) markets by technological infrastructure organizations or grid organizations.
Part 3 of Art. 11.1 of the Law on Protection of Competition contains an open list of the consequences of concerted actions, the responsibility for the commission of which arises only if it is established that such concerted actions lead to restriction of competition.
Agreements of business entities (part 6 of article 11 of the Law) and concerted actions of business entities (part 4 of article 11.1 of the Law), as well as transactions and other actions, while fulfilling three conditions of part 1 of art. 13 of the Law, namely:
- they do not create an opportunity for individuals to eliminate competition in the relevant product market;
- they do not impose restrictions on their participants or third parties that do not correspond to the achievement of the goals of such behavior;
- their result is or may be - improvement of production, sale of goods or stimulation of technical, economic progress; increasing the competitiveness of Russian-made goods on the world commodity market; receipt by buyers of advantages (benefits) commensurate with the advantages (benefits) received by business entities as a result of action (inaction).
Agreements that meet the conditions provided for in Part 1 of Art. 13 of the Law are recognized as permissible in cases determined by the Government of the Russian Federation.
So, in the Decree of the Government of the Russian Federation of July 16, 2009 N 583 "On cases of admissibility of agreements between business entities" General exceptions are defined in relation to agreements between buyers and sellers. So, for example, the agreements provided for by Part 1 of Art. 13 of the Law "On Protection of Competition" are recognized as admissible in the aggregate fulfillment of the following requirements:
- the seller sells the product to two or more buyers and has a market share of this product less than 35%, or, in accordance with the agreement, sells the product to a single buyer whose market share is less than 35%;
- the seller and the buyer do not compete with each other or compete in the commodity market in which the buyer purchases the goods for the purpose of their subsequent sale;
- the buyer does not produce goods that are interchangeable with the goods that are the subject of the agreement.
In addition, clause 2 of the aforementioned General Exceptions formulates the unacceptable conditions of agreements between the buyer and the seller, for example, conditions limiting the buyer's ability to independently determine the price at which he resells the goods to third parties.
An economic entity intending to reach an agreement has the right to apply to the antimonopoly authority with an application to verify the compliance of the draft agreement with the requirements of antimonopoly legislation and provide documents and information in accordance with the List approved by Order of the FAS Russia dated June 18, 2007 N 168 "On approval of the List of documents and information submitted to the antimonopoly authority upon submission of applications by business entities intending to conclude an agreement. "
Federal Law "On Protection of Competition" in clause 9 of Art. 4 gives the concept of unfair competition as any actions of economic entities (groups of persons) that are aimed at obtaining advantages in the implementation of entrepreneurial activities, contradict the legislation of the Russian Federation, business customs, the requirements of integrity, rationality and fairness and have caused or may cause losses to other economic entities - competitors - either caused or may harm their business reputation.
Article 14 of the Law imposes an unconditional prohibition on unfair competition, which can be expressed in:
1) dissemination of false, inaccurate or distorted information that can cause losses to an economic entity or damage its business reputation;
2) misleading in relation to the nature, method and place of production, consumer properties, quality and quantity of goods or in relation to its manufacturers;
3) incorrect comparison by an economic entity of goods produced or sold by it with goods produced or sold by other business entities;
4) the sale, exchange or other introduction of goods into circulation, if the results of intellectual activity and equated means of individualization of a legal entity, means of individualization of products, works, services were used illegally;
5) illegal receipt, use, disclosure of information constituting a commercial, official or other secret protected by law.
Unfair competition associated with the acquisition and use of the right to the means of individualization of a legal entity, means of individualization of products, works or services is also prohibited.
LITERATURE
1. Business law: Textbook / Ed. E.P. Gubina, P.G. Lakhno. M .: Jurist, 2002.S. 13.
2. Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition". Commentary on the Federal Law, ed. V.F. Popondopulo, D.A. Petrov. M .: Norma: Infra-M, 2013.
3. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30, 2008 N 30 "On some issues arising in connection with the application of antimonopoly legislation by arbitration courts" (as amended on October 14, 2010 N 52). URL: http://www.zakonbase.ru/content/nav/121861.
4. Order of the FAS Russia of April 28, 2010 N 220 "On approval of the Procedure for analyzing the state of competition in the commodity market." URL: http://economy.gov.ru/minec/about/structure/depregulatinginfluence/doc20131909_10.
5. Decree of the Government of the Russian Federation of July 16, 2009 N 583 "On cases of admissibility of agreements between business entities" (with General exceptions in relation to agreements between buyers and sellers). URL: http://www.rg.ru/2009/07/23/postanovlenie-dok.html.
6. Order of the FAS Russia of June 18, 2007 N 168 "On approval of the List of documents and information to be submitted to the antimonopoly authority when submitting an application by business entities intending to conclude an agreement." URL: http://www.garant.ru/products/ipo/prime/doc/91489.
7. Order of the FAS Russia of May 25, 2012 N 343 "On approval of the administrative regulations of the FAS for the execution of the state function of monitoring compliance with the antimonopoly legislation of the Russian Federation of agreements restricting competition of economic entities". URL: http://www.rg.ru/2013/03/25/fas-regl-site-dok.html.
