Laws included in the antimonopoly legislation system. Antimonopoly legislation. Description of the main act
Powerful enterprises with monopoly power in the market are a very dangerous factor that can cause irreparable harm to the economy of not only the state, but the entire world. For this reason, a set of laws was created that established the rules for doing business and was aimed at resolving issues related to the fight against unfair competition and other manifestations of monopoly business.
John Sherman is considered one of the founders of antitrust law, who in 1890 introduced business rules aimed at overcoming monopolization. Thanks to the law, it was illegal to eliminate competitors and actions that were aimed at restricting free trade. The Sherman Act is still part of the United States Code. It was and is the foundation for creating and combating manifestations of monopoly. But the act was far from ideal. The first changes and improvements were adopted in 1914. This year is the date of the Clayton Act, as well as the code of law of the Federal Trade Commission. The adoption of antitrust legislation swept across Europe already in the post-war period. England was first, then France and Italy. In turn, Eastern Europe did not stand aside. Since 1980, an antimonopoly set of rules has been adopted in a number of countries, one of which is Russia.
In Russia, the monopoly began to manifest itself exclusively thanks to the leadership of the state. The authorities were guided by the direct development of the state's economy and the welfare of the country as a whole, and it was for this reason that monopolies and trusts were artificially created. But over time, the creation of individual monopolies in sectors of the economy played a cruel joke on the state, as they began to oppress not only many enterprises, but also the very top, thereby trying to dictate their terms. For this reason, it was decided to create anti-monopoly legislation and implement it in Russia in order to deprive the monopoly of independence and enormous power.
In the post-war period, the USSR organized its own trust, which was called the “command economy”. And it was simply impossible to compete with Gosplan, Goskomtsen and Gossnab.
Currently, the Federal Antimonopoly Service operates in Russia, which began in 2004. Its creation was influenced by the experience of the RSFSR State Committee on Antimonopoly Policy and Support for the Development of New Economic Structures, which began working fourteen years before the creation of the Federal Antimonopoly Service. The task of the committee was to eliminate the disadvantage of trade participants. Such bodies reported directly to the Prime Minister. If we characterize the Federal Antimonopoly Service, then its specific functions were the fight against monopoly business, namely:
1. Consideration of issues related to unfair competition.
2. Prevention, detection and prevention of obvious signs of monopoly business.
3. Control over compliance with all legal rules for doing business.
Russian enterprises that have more than 35% of sales on the domestic market are included in a special register created by the antimonopoly service. With its help, it is easier for authorities to influence the prevention of monopoly. The service is also developing proposals that help improve antitrust legislation and promote the competitiveness of developing enterprises. In 1995, the bodies of the RSFSR adopted an act, which later became the main law against the monopoly. It was called “On Competition and Limitation of Monopolistic Activities in Commodity Markets.” Of course, this normative act has been refined and updated more than once, and some clauses of the law have been removed.
Since its promulgation, the law consisted of 7 sections. Over time, some items have been removed or replaced. Each of the sections was highlighted.
For example, the first section was devoted exclusively to general concepts and the interpretation of individual terms.
The second talked about which companies were considered to be operating with signs of a monopoly.
The third and fourth sections combine the concepts of unfair competition and what tasks antimonopoly legislation sets itself.
Of the last three, we can highlight the sixth section, in which the legislator indicated responsibility for carrying out illegal actions. Over time, individual parts of this regulatory act became independent norms.
Antimonopoly legislation is based on articles of the Constitution and the Civil Code. Also a fundamental regulatory act is the Law of the Russian Federation “On Competition”. The principles of antimonopoly legislation are primarily reflected in the eighth article of the Constitution of the Russian Federation, thanks to which the main economic principle is enshrined at the legislative level - freedom of market relations, that is, competition. Also, Article 34 states that the Constitution prohibits activities aimed at monopolizing business. In turn, Article 74 of the Constitution establishes that the territory of the Russian Federation is a single economic space. This factor is a necessary condition for maintaining fair competition.
As for the Civil Code, it enshrines important norms that directly dictate rules prohibiting certain actions related to restricting competition. One of the articles states that it is prohibited to use civil rights for personal gain to limit competition. A significant moment was the fact of approval of the Law “On Protection of Competition”. This law was also based on the concepts of antimonopoly, the rules of which established methods for protecting and suppressing trusts, monopolies and unfair competition. But if international standards establish other rules for doing business, then they have priority and override the norms of the legislation of the Russian Federation.
The legislation of the Russian Federation establishes the levels of implementation of antimonopoly laws. According to the rules, 2 levels of legislation are established: federal, as well as at the level of the constituent entity of the Russian Federation. Subjects of the Russian Federation have the opportunity to form and regulate a price economy in certain areas of business.
Unfortunately, the legislation whose task is to prevent the monopolization of business in Russia is far from perfect. Of course, steps are being taken to improve legislation, thanks to which they make it possible to promote goods on world markets and help prevent the emergence of trusts. But antimonopoly laws have many pitfalls, which entail great consequences not only for one particular enterprise, but also for the entire economy of the state as a whole.
In accordance with Art. 2 Law on Protection of Competition antimonopoly legislation of the Russian Federation(hereinafter referred to as antimonopoly legislation) is based on the Constitution of the Russian Federation, the Civil Code and consists of the Law on the Protection of Competition, other federal laws regulating relations that are related to the protection of competition, including the prevention and suppression of monopolistic activities and unfair competition. These relations can be regulated by decrees of the Government of the Russian Federation, regulatory legal acts of the federal antimonopoly body in cases provided for by antimonopoly legislation.
Thus, a certain hierarchy of regulatory legal acts is being built that regulates relations related to the protection of competition:
- 1) Constitution of the Russian Federation;
- 2) international treaties;
- 3) GK;
- 4) Law on Protection of Competition;
- 5) other federal laws regulating relations related to the protection of competition;
- 6) resolutions of the Government of the Russian Federation in cases provided for by antimonopoly legislation;
- 7) regulatory legal acts of the federal antimonopoly body in cases provided for by antimonopoly legislation.
The only remark can be an indication that in relation to antimonopoly regulation, federal laws can be divided into two groups: a) laws regulating relations related to the protection of competition; b) laws governing relations that influence the state of the competitive environment.
This division is due to the fact that the competitive environment is dependent not only on laws whose action is directly directed at it, but also on laws whose subject of regulation are relations that do not directly affect competition, but are adjacent to it, creating the preconditions for competitive relations .
According to the Constitution of the Russian Federation, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law (Part 1, Article 34); in the Russian Federation, the unity of the economic space, the free movement of goods, services and financial resources, support for competition, and freedom of economic activity are guaranteed (Part 1 of Article 8); on the territory of the Russian Federation, economic activities aimed at monopolization and unfair competition (Part 2 of Article 34), as well as the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources are not allowed; restrictions on the movement of goods and services may be introduced in accordance with federal law if this is necessary to ensure safety, protect the life and health of people, protect nature and cultural values (Article 74).
Based on the above provisions of the Constitution of the Russian Federation in conjunction with the provisions of its Art. 2, 17, 18 and 45 (part 1), in the Russian Federation the most favorable conditions should be created for the functioning of the economic system as a whole, which implies the need to stimulate a free market economy based on the principles of self-organization of the economic activities of entrepreneurs as its main subjects, and the adoption the state of special measures aimed at protecting their rights and legitimate interests and thereby achieving the goal of optimizing state regulation of economic relations.
It should be noted that the Constitution of the Russian Federation prohibits the implementation of economic activities aimed at monopolization, which is not entirely correct and has already been repeatedly noted in the literature. In this case, we should talk about the need to prohibit monopolistic activities, and not about the prohibition of monopolies or monopolization.
There are areas in which the presence of monopolies is a standard state of the market. Thus, the Law on Natural Monopolies is aimed at achieving a balance of interests of consumers and subjects of natural monopolies, ensuring the availability of the goods they sell to consumers and the effective functioning of subjects of natural monopolies.
The provisions of the Law on the Protection of Competition, allowing for the implementation of activities aimed at increasing the share of an economic entity in the market (i.e., monopolization), prohibit the abuse of such a monopoly (dominant) position (Article 10), carrying out monopolistic activities (Clause 10, Art. 4 of the Law on Protection of Competition).
Therefore, this norm of the Constitution of the Russian Federation should be interpreted in a narrow sense - as aimed at consolidating the constitutional principle of supporting competition and antimonopoly regulation.
International treaties. The Constitution of the Russian Federation establishes that the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty apply.
Part of the legal system of the Russian Federation is also the current international treaties concluded by the USSR, in relation to which the Russian Federation continues to implement the international rights and obligations of the USSR as a successor state of the USSR.
Part 3 Art. 2 of the Law on Protection of Competition determines that if an international treaty of the Russian Federation establishes rules other than those provided for by the Law on Protection of Competition, the rules of the international treaty of the Russian Federation are applied. Article 7 of the Civil Code, establishing the relationship between civil legislation and international law, contains similar rules.
A significant contribution to the definition of the concept of unfair competition is made by international agreements in the field of protection of intellectual and industrial property (patents, trademarks, industrial designs, etc.), including the Convention for the Protection of Industrial Property of March 20, 1883, according to Art. 10.bis which any act contrary to fair customs in industrial and commercial affairs shall be considered an act of unfair competition.
The Free Trade Zone Agreement, signed in St. Petersburg on October 18, 2011, ratified by Federal Law No. 21-FZ dated April 1, 2012 “On Ratification of the Free Trade Zone Agreement,” defines the conditions for the proper and effective functioning of the free trade zone and free movement of goods, facilitating the integration of its participants into the world economy and the international trading system.
A number of agreements were signed between the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation in Moscow on December 9, 2010 to ensure the effective functioning of commodity markets in the common customs territory of the member states of the Customs Union and the harmonization of national legislation. In particular, the Agreement on Common Principles and Rules of Competition, ratified by Federal Law No. 185-FZ of July 11, 2011 “On Ratification of the Agreement on Common Principles and Rules of Competition,” defines uniform principles and rules of competition that ensure the identification and suppression of anti-competitive actions in the territory of the named states and actions that have a negative impact on competition in cross-border markets on the territory of two or more states.
The Agreement on uniform principles and rules for regulating the activities of natural monopoly entities, ratified by Federal Law No. 183-Φ3 of July 11, 2011 “On the ratification of the Agreement on uniform principles and rules for regulating the activities of natural monopoly entities,” defines uniform principles and general rules for regulating the activities of natural monopoly entities states, aimed at ensuring the availability of services sold by subjects of natural monopolies, the efficiency of functioning and development of subjects of natural monopolies.
The Federal Antimonopoly Service actively cooperates with international organizations and foreign antimonopoly agencies in the field of antimonopoly policy, combating unfair competition and state regulation of natural monopolies.
The Agreement of the CIS countries of October 9, 1992 “On the principles of approximation of the economic legislation of the member states of the Commonwealth” established the need to carry out work to approximate the legislation regulating economic activity, in particular, antimonopoly legislation.
The Government of the Russian Federation adopted Resolution No. 127 dated February 14, 2000 “On the signing of the Agreement on the implementation of an agreed antimonopoly policy.” The purpose of this Agreement is to create a legal and organizational basis for cooperation between the signatories in pursuing an agreed antimonopoly policy and developing competition, as well as eliminating factors negative for trade and economic development and preventing actions that damage the economic interests of the participating states due to monopolistic activities and (or) unfair competition.
Based on the Agreement on the Implementation of a Coordinated Antimonopoly Policy (Moscow, January 25, 2000), the Interstate Council on Antimonopoly Policy (ICAP) was established, which: coordinates the joint activities of the parties to the agreement to create a legal framework for the prevention, limitation and suppression of monopolistic activities and unfair competition in commodity market; promotes the development and improvement of national legislation on competition issues; develops and recommends to the parties rules and a mechanism for implementing specific actions to prevent, limit and suppress monopolistic activities and unfair competition.
In addition to the above documents, the contractual legal framework of the ICAP consists of: Agreement on the main directions of cooperation between the CIS member states in the field of consumer rights protection; Memorandum of cooperation in the field of competition policy between ICAP, the Competition Council of the Republic of Latvia, the Romanian Competition Council and the Fair Trade Commission of the Republic of Korea.
International cooperation with neighboring countries is also carried out on the basis of other bilateral agreements at various levels: Memorandum of cooperation between the Interstate Council on Antimonopoly Policy and the Interstate Aviation Committee, Agreement between the Ministry of the Russian Federation for Antimonopoly Policy and Support of Entrepreneurship and the Ministry of Economy and Reforms of the Republic of Moldova on cooperation in the field of competition policy; Cooperation programs between the OFAS Russia for St. Petersburg and the Leningrad region and the Kyiv territorial branch of the Antimonopoly Committee of Ukraine; Agreement between the Government of the Russian Federation and the Cabinet of Ministers of Ukraine.
The Civil Code of the Russian Federation (Part 1) as a fundamental act of civil legislation was adopted in 1994. But even before that, from the moment the economy began to reform and market relations were built, norms aimed at protecting competition were introduced into the legislation (see paragraph 9 of Article 2 Law of the RSFSR dated December 24, 1990 No. 443–1 “On Property in the RSFSR”; paragraph 3 of Article 5 of the Fundamentals of Civil Legislation of the USSR and the Republics dated May 31, 1991).
The Civil Code aims to consolidate the legal connection between competitive and civil legal relations. According to Part 1 of Art. 2 of the Law on the Protection of Competition, antimonopoly legislation is based on the Constitution of the Russian Federation and the Civil Code.
The Law on the Protection of Competition formulates requirements for business entities when they enter into civil legal relations with other participants in civil transactions. Thus, for persons occupying a dominant position in the market, restrictions provided for in Art. 10 of the Law on Protection of Competition; For persons, regardless of whether they occupy a dominant position or not, there are prohibitions on agreements restricting competition (Article 11 of the Law on Protection of Competition) and on unfair competition (Article 14 of the Law on Protection of Competition). Taking this into account, arbitration courts must keep in mind: the requirements of antimonopoly legislation apply to civil legal relations. This means, in particular, that a decision or order of the antimonopoly body cannot be invalidated (and equally the antimonopoly body cannot be refused to satisfy its claims) only on the basis of the qualification of the relevant legal relations with the participation of the business entity to which the order of the antimonopoly body was issued or to which This body filed a claim as a civil one (clause 1 of the resolution of the Supreme Arbitration Court of the Russian Federation No. 30).
Article 1222 of the Civil Code establishes that the law of the country whose market is affected by such competition applies to obligations arising from unfair competition, unless otherwise follows from the law or the essence of the obligation.
According to paragraph 7 of Art. 1252 of the Civil Code, in cases where a violation of the exclusive right to a result of intellectual activity or to a means of individualization is recognized in the prescribed manner as unfair competition, the protection of the violated exclusive right can be carried out both by the methods provided for by the Civil Code and in accordance with antimonopoly legislation.
Federal Law of July 26, 2006 No. 135-Φ3 “On the Protection of Competition” applies to relations related to the protection of competition, including the prevention and suppression of monopolistic activities and unfair competition, and in which Russian legal entities and foreign legal entities, organizations, federal executive authorities, state authorities of constituent entities of the Russian Federation, and local governments participate , other bodies or organizations performing the functions of these bodies, state extra-budgetary funds, the Central Bank of the Russian Federation, individuals, including individual entrepreneurs.
This law is a complex regulatory legal act, since it includes substantive and procedural, private law and public law norms. The purpose of this unification was the need to consolidate in one law the rules governing relations related to the protection of competition, and to create a basis for establishing features in the regulation of relations to protect competition in certain industries.
Other federal laws regulating relations related to the protection of competition. These laws contain rules directly aimed at protecting competition.
A striking example of establishing features in the legal regulation of relations for the protection of competition is the Law on Electricity, according to Art. 25 of which antimonopoly regulation and control in the wholesale and retail electricity markets are carried out by the antimonopoly authority in accordance with the antimonopoly legislation of the Russian Federation, regulatory legal acts of the Government of the Russian Federation, taking into account the features established by this law, and acts of the federal antimonopoly authority adopted in accordance with regulatory legal acts of the Government of the Russian Federation.
The Law on Natural Monopolies is important, establishing the status of subjects of natural monopolies and the rules of conduct in a market in a state of lack of competition, prohibiting the containment of an economically justified transition of spheres of natural monopolies from a state of natural monopoly to a state of a competitive market.
Some laws establish specifics in relation to the Competition Law. Thus, Federal Law No. 315-Φ3 of December 1, 2007 “On Self-Regulatory Organizations” establishes, among other things, the conditions for coordination of economic activities, access to the market, etc. Clause 7 of Art. 4 of this Law determines that the standards and rules of a self-regulatory organization must establish a ban on members of a self-regulatory organization carrying out activities to the detriment of other subjects of business or professional activity, and must also establish requirements that prevent unfair competition, the commission of actions that cause moral harm or damage to consumers of goods ( works, services) and other persons, actions that damage the business reputation of a member of a self-regulatory organization or the business reputation of a self-regulatory organization.
Some laws regulating a certain type of socio-economic relations contain rules that only refer to the Law on Protection of Competition. For example, Art. 35 of the Federal Law of October 29, 1998 No. 164-FZ “On financial rent (leasing)” indicates that the prevention, limitation and suppression of monopolistic activities and unfair competition in the leasing services market are ensured by the federal antimonopoly authority in accordance with antimonopoly legislation.
Laws regulating relations that influence the state of the competitive environment. These laws do not aim to regulate relations to protect competition, but they cannot be ignored, since they establish rules that have a formative and indirect impact on the state of the competitive environment.
These include, in particular, the following: The Law on Advertising, the purpose of which is the development of markets for goods, works and services based on compliance, among other things, with the principles of fair competition; The Law on the Contract System, which regulates relations related to procurement for state or municipal needs, including for the purpose of developing fair competition; The Procurement Law, which establishes the specifics of the procurement of goods, works, and services for the needs of certain types of customers in order to develop fair competition.
Decrees of the Government of the Russian Federation and regulatory legal acts of the federal antimonopoly body in cases provided for by antimonopoly legislation.
These regulatory legal acts are adopted only in cases where the federal laws that make up the antimonopoly legislation directly require the Government of the Russian Federation or the federal antimonopoly body to adopt the corresponding act. The number of these acts is quite large, they regulate narrow issues, and therefore will be mentioned when considering certain issues of antimonopoly regulation.
In accordance with clause 4, part 2, art. 23 of the Law on Protection of Competition, FAS Russia is authorized to issue regulatory legal acts provided for by this law. Regulatory legal acts can be issued by the FAS of Russia in the form of resolutions, orders, instructions, rules, instructions and regulations in accordance with clause 2 of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration, approved by Decree of the Government of the Russian Federation of August 13, 1997 No. 1009 The publication of normative legal acts in the form of letters and telegrams is not allowed. Structural divisions and territorial bodies of federal executive authorities do not have the right to issue regulatory legal acts.
According to clause 1, 5.2.10 of the Regulations on the FAS, this service is an authorized federal executive body that carries out the functions of adopting regulatory legal acts and monitoring compliance with antimonopoly legislation, for which it is vested with authority on the basis of and in pursuance of the Constitution of the Russian Federation, federal constitutional laws , federal laws, acts of the President of the Russian Federation and the Government of the Russian Federation, independently adopt normative legal acts on issues in the established field of activity, with the exception of issues the legal regulation of which in accordance with the Constitution of the Russian Federation and federal constitutional laws, federal laws, acts of the President of the Russian Federation and the Government of the Russian Federation is carried out exclusively federal constitutional laws, federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation.
Antimonopoly regulation is characterized by the use of norms from various branches of law (civil, administrative, criminal, etc.), and their combination, taking into account the establishment of special mechanisms of legal regulation, allows for the implementation of measures to protect competition. Therefore, antimonopoly legislation is complex in nature, combining dispositive and imperative norms, private law and public law principles.
Sources of competition law are: normative legal acts; generally recognized principles and norms of international law, international treaties of the Russian Federation; business customs; requirements of integrity, reasonableness and fairness. The first two categories of sources were discussed above.
A custom is a rule of behavior that has developed and is widely used in any area of business or other activity, not provided for by law, regardless of whether it is recorded in any document.
Custom may be traditions of fulfilling certain obligations, etc. A custom can be applied regardless of whether it is recorded in any document (published in the press, set out in a court decision that has entered into legal force in a specific case containing similar circumstances, etc.). An example of a custom in the field of business activity is the International Rules for the Interpretation of Trade Terms - “Incoterms” developed by the International Chamber of Commerce.
Customs that contradict the provisions of legislation or agreement that are mandatory for the participants in the relevant relationship are not applied.
The signs of custom boil down to the following: 1) the rule of behavior must be established, i.e. sufficiently constant and definite in its content; 2) it should be widely applied and not of a highly specialized, private nature; 3) the scope of application is limited to economic relations; 4) it should not be provided for by law.
In order of application, customs come after legislation and treaties. From the analysis of Art. 5 and 6 of the Civil Code it follows that customs are applied when a gap is discovered in civil legislation that is not filled by agreement of the parties.
The importance of custom for relations to protect competition is great. Firstly, the Law on Protection of Competition itself defines unfair competition as any actions of business entities (groups of persons) that, among other things, contradict business customs. Secondly, the Law on the Protection of Competition, while defining the organizational and legal basis for the protection of competition, including measures to prevent and suppress anti-competitive behavior, often leaves room for subjective discretion and does not contain an exhaustive list of prohibitions. In these conditions, the replenishment of legal regulation through the use of business customs is extremely large.
The requirements of integrity, reasonableness and fairness are named in the Law on Protection of Competition in relation to the concept of unfair competition. As O. A. Gorodov rightly notes, “these requirements are of an evaluative nature and lie in the plane of ethics of business relations. The current legislation does not disclose their meaning, but uses them following the principle bona fides, which presupposes the integrity of business activities."
Judicial practice is very significant for understanding the essence of competitive relations, although the discussion about its qualification as a source of law is not completed. First of all, it is necessary to take into account the legal positions formed by the highest courts when considering specific cases, generalizing the practice of applying certain categories of cases and developing recommendations for the application of legal norms.
The importance of studying judicial practice is also explained by the fact that the prohibitions and orders often formulated in antimonopoly legislation are situational in nature. At the same time, the given lists of actions (inactions) are open and non-exhaustive.
At the same time, the establishment by antimonopoly legislation of prohibitions and open lists of actions (inactions) falling under their characteristics does not indicate uncertainty in the content of the relevant norms. The variety of circumstances influencing the state of competition makes it impossible to establish an exhaustive list of them in the law. The legislator is forced to use evaluative characteristics in order to effectively apply the norm to an unlimited number of specific legal situations.
In the case of behavior that falls under the criteria established by antimonopoly legislation, antimonopoly authorities and the court are obliged, taking into account specific circumstances, to establish the fact of anticompetitive behavior. Applying a general legal prescription to the specific circumstances of the case, the law enforcement officer makes a decision within the limits of the discretion granted to him by law, which cannot be considered a violation of any constitutional rights and freedoms of citizens.
Important for the purposes of antimonopoly regulation are clarifications on the application of antimonopoly legislation by the federal antimonopoly body; generalizations, analytical materials and recommendations on the practice of applying antimonopoly legislation.
In accordance with paragraphs 5 and 9 of Part 2 of Art. 23 of the Law on Protection of Competition, the FAS of Russia is authorized to provide clarifications on its application of antimonopoly legislation; generalize and analyze the practice of applying antimonopoly legislation, develop recommendations for its application.
The Federal Antimonopoly Service is vested with the following powers: summarizes and analyzes the practice of applying the legislation of the Russian Federation in the established field of activity, develops recommendations for the application of antimonopoly legislation (clause 5.4 of the Regulations on the FAS); has the right to provide legal entities and individuals with explanations on issues within the competence of the FAS of Russia (clause 6.3 of the Regulations on the FAS). In fulfillment of this function, by order of the FAS Russia dated January 20, 2012 No. 22, the Administrative Regulations of the Federal Antimonopoly Service for the performance of the state function of providing clarifications on the application of antimonopoly legislation by the federal antimonopoly body were approved.
Letters from the FAS Russia with explanations, recommendations, generalizations and analytical materials on the practice of applying legislation, addressed to an indefinite number of persons, do not meet the criteria of a normative legal act, and therefore cannot have legal significance and give rise to legal consequences for an indefinite number of persons. The provisions contained in the letters of the FAS Russia cannot be considered as establishing mandatory rules of conduct for business entities that are subject to repeated application in the performance of their established functions.
The territorial bodies of the FAS Russia in their activities are also guided by the legal acts of the FAS Russia, which can be normative and individual (addressed to a specific subject, applied once and not retaining their validity after the specific relations provided for by this act have ceased). At the same time, we believe that this norm applies to letters sent to an indefinite number of persons or addressed to a specific territorial body of the FAS Russia or an economic entity operating in the territory of activity of the corresponding territorial body of the FAS Russia.
Arbitration courts considering disputes are not bound by the provisions of such letters, since in accordance with Part 1 of Art. 13 of the APC, such letters are not included in the scope of normative legal acts used in the consideration of cases.
Written explanations prepared in response to requests from business entities, as a rule, are addressed to specific applicants, therefore, the extension, by analogy, of the judgments contained in them to all other cases by other business entities can only be carried out under their independent responsibility.
Letters from the FAS Russia with explanations, recommendations, generalizations and analytical materials on the practice of applying antimonopoly legislation do not contain legal norms or general rules specifying regulatory requirements, and are not regulatory legal acts, regardless of whether the explanation is given to a specific applicant or an indefinite number of persons. They are of an informational, explanatory and generalizing nature on the application of legislation and do not prevent interested parties from being guided by the norms of legislation in an understanding that differs from the interpretation set out by the FAS Russia.
An analysis of judicial practice has shown that sometimes the parties to the process justify their legal position, among other things, with references to clarifications of the FAS of Russia. However, when courts consider cases, in the reasoning part of the judicial act they ignore the argument about the availability of clarifications on the disputed issue.
In another case, the cassation court recognized as correct the position of the first instance court, which did not take into account the explanation of the antimonopoly authority, without, however, explaining in the text of the judicial act on what grounds it believed so.
Sometimes courts in the reasoning part of a judicial act refer to the explanations of the antimonopoly authorities, thereby perceiving them as an argument worthy of attention.
It is very rare to find detailed positions of judicial authorities in which a judgment is expressed about the role and significance of the explanations of the FAS of Russia. Thus, if a letter from the FAS Russia was a response to a question from a specific subject, and was posted in the Garant Legal Reference System, then, in the opinion of the Supreme Arbitration Court of the Russian Federation, the applicant’s reference to it is untenable, since the specified letter is not of a normative nature, but is an explanation of specific issue. In another case, the references of the party in the arbitration process to the clarifications of the Ministry of the Russian Federation on antimonopoly policy and support of entrepreneurship were not taken into account by the court of appeal, since these clarifications contradict the regulations governing the disputed relations.
In one of the cases, the appellate court went further and, rejecting the applicants’ reference to the FAS Russia’s explanations set out in the letter, proceeded from the fact that the said letter was a subjective opinion of the head of the FAS Russia.
The position of the Supreme Court of the Russian Federation, which called the letter of the Federal Antimonopoly Service of the Russian Federation dated December 26, 2005 No. AK/19277 “On advertising of gambling and gambling establishments,” a regulatory legal act aimed at clarifying the grounds for bringing to justice persons violating the Law on Advertising, seems erroneous.
On the other hand, the FAS Russia, in accordance with clause 1 of the Regulations on the FAS, is an authorized federal executive body that exercises the functions of monitoring compliance with antimonopoly legislation, due to which its opinion can be used as the opinion of a specialist whose involvement in the process in order to clarification of emerging issues falls within the exclusive prerogative of the court (Articles 71, 82 of the APC).
Standardization of letters from the FAS of Russia. The Federal Antimonopoly Service actively uses the legislatively stipulated opportunity to provide explanations on the application of antimonopoly legislation by the federal antimonopoly body by sending letters of appropriate content.
These letters not only clarify the issues of application by the antimonopoly authority of the provisions of the law, but also fill existing gaps, substantively approaching in their meaning the normative legal acts. However, in the list of normative acts that the FAS of Russia can adopt, established by clause 5.2 of the Regulations on the FAS, this type of document is not indicated.
In accordance with Part 2 of Art. 23 of the Law on Protection of Competition, the federal antimonopoly body also issues regulatory legal acts provided for by the Law on Protection of Competition (clause 4); provides explanations on the issues of its application of antimonopoly legislation (clause 5); generalizes and analyzes the practice of applying antimonopoly legislation, develops recommendations for its application (clause 9).
At the same time, the FAS Russia has the right, by virtue of clause 6.3 of the Regulations on the FAS, to give legal entities and individuals clarifications on issues within its competence, and by virtue of clause 6.8, to issue individual legal acts on issues within its competence, including orders, rulings, resolutions, in cases provided for by antimonopoly legislation, legislation on natural monopolies and legislation on advertising.
In paragraph 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 29, 2007 No. 48 “On the practice of courts considering cases challenging normative legal acts in whole or in part,” the essential features characterizing a normative legal act include: issuing it in the prescribed manner by an authorized government body , a local government body or an official, the presence in it of legal norms (rules of conduct) that are binding on an indefinite number of persons, designed for repeated application, aimed at regulating public relations or at changing or terminating existing legal relations.
In paragraph 1 of the section “Judicial practice in administrative cases” of the Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2011, approved by the Presidium of the Supreme Court of the Russian Federation on March 14, 2012, it is indicated that a legal act affecting the interests of an unlimited number of persons can be challenged as normative legal act.
In the decision of the Supreme Arbitration Court of the Russian Federation dated March 29, 2012 No. VAS-16112/11, the letter of the Federal Antimonopoly Service of Russia dated May 23, 2011 No. IA/19713 was declared invalid, in which it was established that when constructing a turnkey facility, the customer has the right to stipulate in the bidding documentation the need for supply and installation of equipment inextricably linked with the construction site. This equipment was defined in the letter: it is understood as such equipment, “the supply and installation of which is impossible subsequently without changing the design solutions of the construction site provided for by the project.” If construction work and equipment not related to the construction project were included in one bidding item, liability was provided in the form of issuing an order to cancel the bidding results, since such actions of the customer lead to an unreasonable limitation on the number of participants in placing orders.
In the said decision dated March 29, 2012, the Supreme Arbitration Court of the Russian Federation explained that the resolution of the question of whether a particular act of a government body is of a normative nature must be carried out regardless of its form, content and other conditions, for example, state registration, publication in an official publication . The normative nature of a legal act is determined depending on the specific content of this act and the nature of the legal relations about which the dispute arose, including whether it affects the rights and legitimate interests of an indefinite number of persons. The contested act is normative in nature, since it contains a concept, the definition of which is not established by federal legislation, and provides for conditions entailing legal consequences designed for repeated application.
Thus, to qualify a legal act as normative, it is not the formal characteristics (registration and publication) that are important, but the essential ones (the content and nature of legal relations). And since the letter of the Federal Antimonopoly Service of Russia No. IA/19713 is aimed at regulating the rights and legitimate interests of an indefinite number of persons, it is therefore a normative legal act.
In another case, it was stated that the lack of registration of a legal act with the Ministry of Justice of Russia, official publication, as well as the publication of this act in the form of a letter does not in itself indicate that this document is not a normative legal act.
This position on the possibility of challenging letters from the FAS of Russia has also manifested itself in relation to the performance of the state function of providing clarifications on the application of antimonopoly legislation by the federal antimonopoly body. By decision of the Supreme Arbitration Court of the Russian Federation dated April 1, 2013 No. VAS-181/13, the letter of the Federal Antimonopoly Service dated March 27, 2008 No. AG/6786 “On Market Analysis” and the attached Guidelines for studying the state of competition in the wholesale market of motor gasoline and diesel were declared invalid fuel.
Effect of antimonopoly legislation over time is subject to general rules - acts do not have retroactive force and apply to those relations that arose after they entered into force.
The effect of antimonopoly legislation in space. Norm part 2 art. 3 of the Law on the Protection of Competition establishes a rule on its extraterritoriality - the provisions of the Law on the Protection of Competition apply to agreements reached outside the territory of the Russian Federation between Russian and (or) foreign persons or organizations, as well as to actions performed by them, if such agreements or actions have an impact on the state of competition in the Russian Federation.
It does not matter where the anticompetitive behavior occurs. It is important that the state of competition in the Russian Federation is influenced.
The same idea is implemented in Art. 1222 of the Civil Code - the law of the country whose market is affected by such competition is applied to obligations arising from unfair competition, unless otherwise follows from the law or the essence of the obligation.
Since FAS Russia is an authorized federal executive body, performing functions including monitoring compliance with antimonopoly legislation, and carries out its activities directly and through its territorial bodies, FAS Russia has the right to initiate and consider cases of violation of antimonopoly legislation, regardless of the place of commission offense or the presence of the alleged offender within the scope of the Law on Protection of Competition established in Art. 3 of this law (clause 19 of the resolution of the Supreme Arbitration Court of the Russian Federation No. 30).
The effect of antimonopoly legislation on a circle of persons. The provisions of the Law on Protection of Competition apply to almost all categories of entities: Russian commercial organizations; Russian non-profit organizations carrying out activities that generate income for them; individual entrepreneurs; individuals who are not registered as an individual entrepreneur, but carry out income-generating professional activities in accordance with federal laws on the basis of state registration and (or) license, as well as by virtue of membership in a self-regulatory organization; individuals acting as a member of a group of persons; individuals – consumers; foreign legal entities; federal executive authorities, state authorities of constituent entities of the Russian Federation, local self-government bodies, other bodies or organizations performing the functions of these bodies; organizations involved in the provision of state or municipal services; state extra-budgetary funds; Central Bank of the Russian Federation.
According to Art. 18 of the Federal Law of 07/09/1999 No. 160-FZ “On Foreign Investments in the Russian Federation”, a foreign investor is obliged to comply with the antimonopoly legislation of the Russian Federation and not allow unfair competition and restrictive business practices, including by creating a commercial organization in the Russian Federation with foreign investments or a branch of a foreign legal entity for the production of any product in high demand, and then self-liquidation in order to promote a similar product of foreign origin to the market, as well as through a malicious agreement on prices or on the distribution of markets for the sale of goods or on participation in tenders (auctions, competitions) .
Individuals cannot influence competition due to their lack of economic competence, and therefore the restrictions provided for by law do not apply to them, with the exception of control over economic concentration and carrying out activities as part of a group of persons.
See: URL: fas.gov.ru/international-partnership/ (date of access: 01/23/2014). Gorodov O.A. Decree. op. P. 17.
In countries with developed market systems, the state opposes monopoly with its entire economic and political potential, and finds effective measures and mechanisms for dismantling monopolistic structures that are dangerous to the economy. Largely for this reason, large corporations often choose to refrain from monopolistic behavior. And they do this not only because of the current antimonopoly laws, but because formed with state participation economic and political environment encourages competition, not monopoly.
In the USA, for example, the antitrust department of the Ministry of Justice (650 people) and the Federal Trade Commission (> 1000 people) are involved in overcoming (or, more strictly speaking, “taming”) monopolism, in Japan - the Fair Trading Commission, in France - the Competition Council .
The state's antimonopoly policy is always based on antimonopoly legislation. This legislation includes a package of laws aimed at achieving successful functioning of the market and regulating competition between firms and enterprises.
Antimonopoly legislation is a complex and extensive network of laws, court decisions and legal norms. All these measures are aimed at regulating the actions of firms and corporations in the market of goods and services, in the capital market, cutting off those that are recognized as unfair, of poor quality in relation to the rights of producers and consumers, and also simply harmful to society.
An example of the effect of this kind of legislation in practice is the economic reality of the United States - the Sherman Antitrust Act (1890). American legislation is aimed at ensuring equal starting opportunities for entrepreneurship and slowing down the process of competition developing into a monopoly.
ANTI-MONOPOLY POLICY - a set of government measures (relevant legislation and taxation system, denationalization property, encouragement of small business, etc.), aimed against the monopolization of production and the development of competition among commodity producers.
Antimonopoly policy in Russia in the medium term will be implemented in the following main areas.
1. Improving the legal framework, forms and methods of antimonopoly control and regulation in order to prevent and suppress abuse of market power, conspiracies, agreements and concerted actions that result in restriction of competition and (or) infringement of the interests of business entities or citizens, unfair competition.
2. Demonopolization of the economy and the creation of conditions for the development of competition in monopolized commodity markets with a high degree of concentration of supplies, the removal of barriers to the development of competition and entry into the markets of business entities.
3. Counteracting the creation of new monopoly structures as a result of the redistribution of property, the implementation of corporate investment policy and integration processes, including during the formation of financial industrial groups.
4. Extension of antimonopoly requirements to the markets of financial, including banking and insurance services.
5. Coordination of goals, objectives and measures for demonopolization and development of competition in commodity markets, adaptation of competition policy in order for Russia to join the world economic community.
In accordance with the Program, a special policy will also be implemented regarding natural monopolies on the basis of current legislation. According to the Law "On Natural Monopolies", the scope of regulation at the federal level includes: transportation of oil and petroleum products through main pipelines, gas transportation through pipelines, services for the delivery of electricity and heat, rail transportation, services of transport terminals, ports and airports, services public electric and postal communications. At the regional level - utilities, including heat supply, sewerage, water supply, etc. Here, government regulation is considered justified, since competition between similar enterprises is almost impossible for technological or economic reasons.
The main factor under the influence of which antimonopoly policy will be shaped in the next few years is the opening of the economy to foreign competition, including the creation of free economic zones.
In this regard, it is necessary to increase the status of antimonopoly authorities and their greater independence from government structures. In short, antimonopoly legislation must be effective, comprehensive and systemic. It must be linked with other laws that are directly or indirectly related to the state's antimonopoly policy.
Lecture 8. Antimonopoly regulation
2. Antimonopoly legislation, its goals and objectives.
Development and implementation antimonopoly policy is one of the most important economic functions of a modern state.
The implementation of antimonopoly policy is based on the conclusion that society suffers economic and other losses from the displacement of market competition by a monopoly.
Competition- this is the competition of economic entities, the independent actions of which effectively limit the ability of each of them to unilaterally influence the general conditions of production of goods and their circulation in the relevant market. This is a competition in which the most effective participants win.
Competition is one of the most important elements of the market, since it is competition that forces participants in economic relations to engage in activities necessary for society, and is a mechanism of selection and regulation in a market economy. Competition refers to those properties of a market economy, without which a market economy does not exist at all.
Antimonopoly policy is a set of government measures aimed at preventing, limiting and suppressing monopolistic activities, ensuring equal conditions of competition for all business entities and preventing unfair competition.
State antimonopoly regulation of the economy includes two interconnected directions:
1) development and adoption of special antimonopoly legislation;
2) formation of a system of bodies carrying out antimonopoly regulation and monitoring compliance with antimonopoly legislation.
In the main capitalist countries, antimonopoly laws were adopted after the Second World War: in France - in 1945, in Japan - in 1947, in England - in 1948, in Germany - in 1957. National legislation reflects the specific conditions of their countries and differ from American legislation. However, antimonopoly legislation is uniform in its fundamentals. It, firstly, puts mergers of companies under state control, secondly, prohibits agreements and conspiracies of entrepreneurs and, thirdly, suppresses unfair competition.
In Russia, the need for antimonopoly regulation was realized by the state authorities only in 1990, when the predecessor of the current Federal Antimonopoly Service was created - the State Committee of the RSFSR for Antimonopoly Policy and Support of New Economic Structures. And in 1991, the fundamental law in the field of antimonopoly regulation was adopted, the Law “On Competition and Restriction of Monopolistic Activities in Product Markets.”
Goals and methods of antimonopoly regulation in Russia.
Antimonopoly regulation operates to ensure the unity of the economic space, the free movement of goods, freedom of economic activity in the Russian Federation, the protection of competition and the creation of conditions for the effective functioning of commodity markets.
The strategic objectives of carrying out antimonopoly policy and developing competition in Russia at the present stage were formulated by the President of the Russian Federation V.V. Putin on 02/08/2008 in a speech at an extended meeting of the State Council “On the development strategy of Russia until 2020.”
The main goal of antimonopoly regulation in Russia is to control economic concentration in commodity and financial markets, which is necessary to prevent their monopolization.
Based on this, it is possible to determine tasks of antimonopoly regulation:
- support for healthy competition;
Ensuring freedom of economic activity on the territory of the Russian Federation;
Suppression of monopolistic activities, as well as unfair competition in product markets;
Preventing the creation of obstacles to access to the product market or exit from the product market for other economic entities;
Creating conditions for the effective functioning of commodity markets.
The main instrument of state antimonopoly policy is the state legal mechanism - antimonopoly legislation and the system of legislative, executive and judicial authorities. With the help of antimonopoly laws, the state carries out legal and administrative regulation of the activities of monopolies, creating conditions for the reproduction of competition.
Antimonopoly legislation, its goals and objectives
The main federal law, aimed solely at maintaining the achieved level and further development of competition, is the federal law of July 26, 2006 No. 135-FZ “On the Protection of Competition”.
The Federal Law “On the Protection of Competition” defines the organizational and legal basis for the protection of competition.
Purposes of the law are to ensure the unity of the economic space, the free movement of goods, freedom of economic activity in the Russian Federation, the protection of competition and the creation of conditions for the effective functioning of commodity markets.
The Law “On Protection of Competition” defines the current organizational and legal basis for protecting competition on commodity and financial markets in Russia. These include: a clear definition of the range of transactions and actions that are carried out with the prior consent of the antimonopoly authority; the definition of the dominant position of an economic entity in the product market is clarified; a fundamentally new definition of prohibitions on various types of monopolistic activities is given; provides an exhaustive list of the powers of the antimonopoly authority and the types of orders that it has the right to issue, etc.
The Law develops antimonopoly legislation and specifies restrictions and prohibitions on monopolistic activities. by law prohibited: abuse by an economic entity of a dominant position in the market; actions or agreements that restrict competition; unfair competition.
The law also defines general antimonopoly requirements for the procedure for conducting all types of tenders, competitions and auctions by authorities and extra-budgetary funds.
Strategic competition policy objectives require compliance with certain principles and methods when carrying out it. Of the existing principles and methods can be distinguished:
Assessing the impact on the competitive environment of measures to protect against unfavorable foreign competition;
Antimonopoly control over compliance with competition laws;
Application of restrictive measures;
Combating unfair competition;
Control over economic concentration;
Reducing barriers to firms entering the market and creating new companies;
Antimonopoly regulation in natural monopoly industries;
Prohibitions on anti-competitive actions of government and management bodies;
Control in the field of placing government orders;
Market Analysis;
Ensuring competition at the global level.
Under restrictive measures understand prohibitions for monopolistic activities; unfair competition, which may lead to restriction of competition; direct intervention of government authorities in the activities of enterprises, etc.
Authorities are prohibited from providing benefits and advantages to individual companies. Competitive requirements for bidding and auctions in government procurement are established.
Law “On Protection of Competition” prohibits the implementation of concerted actions between business entities, which may lead to: establishing monopoly high or monopolistically low prices; removing a product from circulation in order to create or maintain a shortage; inclusion in the contract of discriminatory conditions that put the counterparty in an unequal position compared to other enterprises; inducing the counterparty to refuse to enter into contracts with individual buyers (customers).
Unfair competition- these are any actions of business entities (groups of persons) aimed at obtaining advantages in carrying out business activities that are contrary to the legislation of the Russian Federation, business customs, the requirements of integrity, reasonableness and fairness and have caused or may cause losses to other business entities - competitors - or have caused or may harm their business reputation.
Unfair competition is not allowed , including:
Dissemination of false, inaccurate or distorted information that may cause losses to a business entity or damage its business reputation;
Misrepresentation regarding the nature, method and place of production, consumer properties, quality and quantity of a product or in relation to its manufacturers;
Incorrect comparison by a business entity of the goods produced or sold by it with goods produced or sold by other business entities;
Sale, exchange or other introduction into circulation of goods, if the results of intellectual activity and equivalent means of individualization of a legal entity, means of individualization of products, works, services are used illegally;
Illegal receipt, use, disclosure of information constituting a commercial, official or other secret protected by law.
The law provides for control over economic concentration.Economic concentration – transactions, other actions, the implementation of which affects the state of competition. State control over concentration is intended to prevent the deterioration of the competitive environment and eliminate the possibility of a situation of abuse of a dominant position. Therefore, the largest mergers and acquisitions transactions are carried out in accordance with the permitting procedure after agreement with the antimonopoly authority. The same procedure is provided for mergers and acquisitions involving foreign companies.
The law provides for the reduction of barriers to entry of firms into the market and the creation of new companies . The possibility of the emergence of new sellers is a deterrent to the manifestations of monopolism on the part of firms already operating in the market. The formation of new firms is also an important element in improving competitiveness.
Antimonopoly regulation has been established in natural monopoly industries. The economic meaning of a natural monopoly is the existence of such an effect in an industry in which only one firm can operate in the market. This is typical for industries that require large-scale investments in distribution networks, such as electricity, gas and water supply, telecommunications, railways, etc.
However, even for such industries, mechanisms are provided to achieve competitive results:
1) withdrawal of excess profits by the regulatory body;
2) carrying out inspections with the imposition of large fines when it is revealed that firms have overestimated their costs;
3) setting tariffs as the average or lowest costs for a group of similar firms;
4) holding auctions for firms to obtain the right to produce products or provide services within a specified period.
Prohibitions have been established on anti-competitive actions of government and management bodies. The law prohibits the adoption of regulations and actions that limit the independence of enterprises, create discriminatory or favorable conditions for some to the detriment of others, and thereby limit competition and infringe on the interests of enterprises or citizens.
The procedure and control in the field of placing government orders (purchases) have been established. If such purchases become guaranteed for sellers, then quality decreases, prices go up, and the competitive development of the economy stops. To prevent this from happening, strict placement procedures and monitoring of compliance with these procedures have been developed.
To prevent and suppress monopolistic activities, the State Register of the Russian Federation is maintained . The inclusion of a business entity in the register, the exclusion of a business entity from the register, the introduction of changes to the register is carried out on the basis of an order of the FAS of Russia, if the business entity has a share of more than thirty-five percent in the relevant commodity market of the Russian Federation as a whole. The register must include enterprises that are the only producers in Russia of certain types of products.
Control questions
1. What are the contents and methods of antimonopoly regulation?
2. Name the tasks of antimonopoly regulation.
3. Formulate the goals and objectives of antimonopoly legislation.
4. List legislative measures to combat monopolistic activities in the economy.
It's no secret that where there is demand, there is always supply. If there are more than one companies ready to satisfy the needs of consumers, then this indicates the presence of such a thing as competition in the market. With its help, prices, quality and quantity of goods are maintained. If a company or organization offering the public this or that type of product or service exists in a single copy, then a so-called monopoly is likely to emerge (translated from Greek as “one seller”).
Positive and negative aspects of the presence of a dominant company in the market
On the one hand, the presence of such a phenomenon has a beneficial effect on the development of scientific and technological achievements, makes it possible to introduce the latest technologies, pour funds into the training of qualified workers, etc. On the other hand, monopolization of a particular sector of the economy has a number of negative aspects. Thus, the first and most important thing is to suppress the driving force for the development of market progress - competition.
The second factor smoothly follows from the previous one. The lack of competition allows you to set prices that will be acceptable primarily for the enterprise. That is, there is a possibility of an increase in the cost of a product when the volume of its output decreases. Monopoly firms are capable of artificially slowing down the development of new technologies, as well as destroying natural resources and polluting the environment.
Any attempt by a medium or small business of a similar nature to develop and enter the market is eradicated. How, then, to fight monopolies? How can we support the development of competition and prevent the emergence of single-handed firms in the market? To prevent all the negative consequences associated with the monopolization of the economy, in many countries of the world, including Russia, there is antimonopoly legislation. Let's take a closer look at what this area of law is, where it came from and what its development has been.
History of origin
Functions and tasks of the organization
This department reports directly to the Prime Minister of the country. Taken together, the Federal Antimonopoly Service is involved in resolving issues that are in one way or another related to the emergence and development of monopolies. In particular, this division:
1. Resolves issues related to unfair competition.
2. Engaged in suppression, as well as restriction and prevention of actions leading to the emergence of monopolies.
3. Monitors compliance with all existing requirements and regulations relating to antimonopoly legislation.
All organizations operating in the Russian market, whose sales volume is more than 35% of the country's total, are included in a special state register. This list allows the FAS to exercise proper control over the activities of monopolies and hold them responsible for violating antimonopoly legislation.
The service in question is developing new proposals to improve the development of a competitive economy. It also differentiates the use of these measures depending on the market area.
Various interpretations
Currently, Russia is taking steps to create a full-fledged competitive environment for the national economy. They provide for the promotion of goods on the world market, reducing the risk of the emergence of trusts or alliances in a particular market niche. At this stage of development, the antimonopoly legislation of the Russian Federation is far from perfect. Numerous pitfalls of existing regulations and different interpretations of their points lead to negative consequences, the responsibility for which falls on the government and businessmen. Even the smallest violation of antitrust laws can lead to serious damage.
Federal laws you need to know: part one
He who is forewarned is forearmed. This is why large organizations should be aware of the rules and laws contained in federal antitrust laws.
There are two main directions in which the activities of organizations are regulated. The first branch includes antimonopoly legislation, the provisions of which are directed against the dominant company and the pricing artificially created by it. This direction is regulated by the following regulations:
1. Federal Law “On Competition and Restriction of Monopolistic Activities in Product Markets”. This act came into force on March 22, 1991. It is the main document by which control over monopoly organizations is exercised.
2. Federal Law “On the Protection of Competition in the Financial Services Market”. It was adopted on June 23, 1999.
Federal laws you need to know: part two
The next branch that is affected by antimonopoly legislation in Russia is the regulation of work processes. The latter include railways and water supply, housing and communal services and other strategically important organizations. The functioning of this kind of objects is based on several legal acts:
1. Federal Law “On Natural Monopolies”. It was adopted in mid-July 1995 by the State Duma. And it came into force a little later - on August 17. Then it was subject to adjustments and additions more than once.
2. Decree of the President of the Russian Federation “On the reform of housing and communal services” adopted on April 28, 1997.
3. On December 20, 1997, a decree of the Government of the Russian Federation “On the Program for demonopolization and development of competition in the housing and communal services market for 1998-1999” was signed.
4. Federal antimonopoly legislation is also regulated by the decree of the President of the country “On the development of competition in the provision of services for the operation and repair of state and municipal housing funds,” which came into force at the end of March 1996.
It is worth noting that both the first and second directions are strictly implemented at the regional level. Russian local antimonopoly legislation does not have any fundamental differences from the general provisions in force throughout the country. The adoption of additional acts at the regional level only indicates the desire of executive bodies to give federal regulations a legitimate character in some specific areas of the state.
Particular attention should be paid to the fact that antimonopoly legislation has a number of restrictions that restrict the freedom of decision-making by various business entities. And, what is most interesting, it has a unique structure compared to other legal systems in Russia, a very abstract structure. The latter, in turn, consists of a number of abstract concepts.
Description of the main act
On March 22, 1995, the government of the RSFSR adopted the law “On competition and restriction of monopolistic activities in commodity markets.” Over the course of several decades, this act has been supplemented and revised. Subsequently, the articles of the document began to define the basic principle of operation of the mechanism called “Antimonopoly legislation”.
Initially, the resolution consisted of seven sections. Gradually, some of them were replaced by separate laws, others simply lost force. However, this document is the main one in the formation of antimonopoly policy in Russia.
Let's briefly look at what each section of this act contains:
1. The first part of the law is called “General Provisions”. It consists of four articles that talk about:
a) the goals pursued by this resolution, and about such a mechanism as antimonopoly legislation, as well as about its structure;
b) the scope of application of the law itself;
c) federal and regional antimonopoly authorities;
d) basic concepts that appear throughout the text of the document.
2. The second section is the main and most important for organizations. It describes the nature and also gives possible signs of the presence in the market of a company conducting monopoly activities. Articles 5-9 regulate the work of organizations that occupy a dominant position in a particular area of the economy.
3. Consisting of one article, the third section of the law talks about such concepts as antimonopoly legislation as a means of combating it.
4. The fourth part of the law consists of six sections. Each of them in turn gives answers to the following questions:
a) what are the tasks and functions of the antimonopoly authority;
b) what his powers include;
c) what are the rights of the authority in obtaining information of various kinds;
d) is it necessary to provide data to higher authorities;
e) what the responsibilities of the antimonopoly authority include in the matter of maintaining trade secrets;
f) what is the assistance of the authorities in the development of entrepreneurship and competition.
5. The fifth section reveals to the reader the various types of monopoly enterprises. It contains four parts.
a) mandatory execution of orders and orders issued by the antimonopoly authority;
b) types of liability for violation of antimonopoly legislation;
c) obligations of commercial and non-commercial enterprises in case of failure to comply with the points of the act in question;
d) liability for violation of the law by managers and other persons;
e) recovery of losses;
f) liability of persons of the federal antimonopoly body in case of violation of provisions of the law.
7. The last section establishes the procedure for accepting, executing or appealing orders issued by the antimonopoly authority.
This is the structure of the original law governing the activities of dominant organizations. Gradually, many articles of this document became separate full-fledged acts.
Methodology for checking violations of antimonopoly legislation
It is noteworthy that for the most part this law does not prohibit the action itself, but the effect that may appear after it. It is this fact that entails enormous difficulties not only for business entities, but also for other individuals and organizations.
The main difficulty arises in determining the list of actions that can lead to various kinds of negative consequences affecting antimonopoly legislation and regulation of business processes. If you understand that certain points will lead to a violation of a legal act, then you can calmly plan the development of the organization and assess economic risks. In another case, there is simply no possibility for a normal work process.
As a rule, in order to find out the negative effect of certain actions taken by the organization, it is necessary to conduct an in-depth economic analysis. There is no single method for testing. Cases of violation of antimonopoly legislation are verified on the basis of regulatory act No. 220, which is called: “The procedure for analyzing the state of competition in the product market.” This resolution was approved on April 28, 2010 by order of the FAS of the Russian Federation.
