Antimonopoly legislation is the following species. The antimonopoly legislation of the Russian Federation is the main acts. Antimonopoly legislation in Russia
Not for anyone a secret, which is where there is a demand, there is always a proposal. If companies are ready to satisfy the needs of consumers, more than one, this indicates the presence of such a thing in the market as competition. With its help, prices, quality and quantity of goods are held. If a firm or an organization, which offers the population, one or another type of product or services exists in a single copy, then the appearance of the so-called monopoly (translated from Greek means "one seller").
Positive and negative sides of the presence in the dominant company market
On the one hand, the presence of such a phenomenon has a beneficial effect on the development of achievements of science and technology, allows you to introduce the latest technologies, pour funds to the preparation of skilled workers, etc. On the other hand, the monopolization of this or that sector of the economy has a number of negative points. Thus, the first and most important is to suppress the driving force for the development of market progress - competition.
The second factor flows smoothly from the previous one. Lack of competition allows you to set prices that will be acceptable primarily for the enterprise. That is, there is a chance to increase the cost of goods with a decrease in its volume of release. Monopoly firms are able to artificially slow down the process of developing new technologies, as well as ruin natural resources and pollute the environment.
Any attempt to unwind out the middle or small business of a similar nature and go to the market eradicates. How in this case, to deal with monopolies? How can it be supported by the development of competition and prevent the possibility of the appearance of uniquely governing firms? To prevent all the negative effects associated with the monopolization of the economy, in many countries of the world, including in Russia, there are antitrust laws. Let us consider in more detail that it represents this area of \u200b\u200bright where it appears and what is its development.
History of origin
Functions and objectives of the organization
This department directly obeys the chairman of the government of the country. If we consider in aggregate, the Federal Antimonopoly Service is engaged in resolving issues, one way or another related to the emergence and development of monopolies. In particular, this is a division:
1. Decides issues related to unscrupulous competition.
2. Engaged in the preventing, as well as the restriction and prevention of actions that entail the appearance of monopolies.
3. Controls compliance with all available requirements and decisions related to antitrust laws.
All organizations operating on russian marketwhose sales are more than 35% of the total country, are listed in a special state registry. This list allows the FAS to carry out proper control over the activities of the monopolies and impose responsibility for violation of antimonopoly legislation.
The service under consideration is developing new proposals for improving the development of a competitive economy. It also differentiates the use of these measures depending on the market.
Various interpretations
Currently, steps are committed in the creation of a full-fledged competitive environment of the national economy. They provide for the promotion of goods to the global market, reducing the risk of the appearance of trusts or unions in a particular market niche. At this stage of development, the antimonopoly legislation of the Russian Federation is far from perfectly. Numerous underwater stones of existing decisions and various interpretation of their points lead to the emergence of negative consequences, responsibility for which lies with the government and businessmen. Even a minor violation of antitrust laws may result in serious damage.
Federal laws that need to know: the first part
Who is warned, he is armed. That is why large organizations should be aware of the rules and laws that contain federal antimonopoly legislation.
There are two main directions for which the organization's activities are regulated. The first branch includes antitrust laws, the provisions of which are directed against the dominant company and the pricing artificially created by it. This direction is governed by the following regulations:
1. Federal Law "On Competition and Restricting Monopolistic Activities in Commodity Markets". This act entered into force on twenty-second March 1991. It is the main document on which monopolist organizations are monitored.
2. Federal Law "On Protection of Competition in the Financial Services Market". He was adopted by the twenty-third of June 1999.
Federal laws that need to know: Second part
The next branch, which affects antitrust laws in Russia, is the regulation of workflows to the latter relate railway 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". He was adopted in mid-July 1995 by the State Duma. And came into force slightly later - August 17. Then he has repeatedly subjected to adjustment and additions.
2. Adopted on April 28, 1997 Decree of the President Russian Federation "On the reform of housing and communal services."
3. The Twentieth of December 1997, a decree of the Government of the Russian Federation "On the demonstration program and the development of competition in the housing and communal services market for 1998-1999" was signed.
4. The federal antimonopoly legislation is also regulated by 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 stocks", Entered into force at the end of March 1996.
It is worth noting that the first and second destinations are strictly executed at the regional level. Russian anti-monopoly legislation on the ground does not have fundamental differences from the general provision operating throughout the country. Adoption of additional acts at the regional level testifies only to the desire of the executive bodies to give federal regulations legitimate in some individual regions of the state.
Special attention should be paid to the fact that antitrust legislation has a number of restrictions that are constrained by the freedom of decision-making by various entities economic activity. And, most interesting, it has a unique compared to other legal systems of Russia, a very abstract structure. The latter, in turn, consists of a number of distracted concepts.
Description of the main Act
On the twenty-second of March 1995, the Government of the RSFSR adopted the law "On Competition and Restriction of Monopolistic Activities in Commodity Markets". For several decades, this act was complemented and revised. In the future, the article's article and began to determine the basic principle of the mechanism under the name "Antimonopoly Legislation".
Initially, the ruling consisted of seven sections. Gradually, some of them were replaced. separate lawsOthers simply have lost strength. However, this document is the main thing in the formation antimonopoly Policy Russia.
Briefly consider it contains each section of this act:
1. The first part of the law is called " General provisions" It consists of four articles that narrate about / about:
a) goals pursued by this resolution and such mechanism as antitrust laws, as well as on its structure;
b) the scope of application of the law itself;
c) the antimonopoly bodies of the federal and regional scale;
d) basic concepts that are found in the text of the document.
2. The second section is the main and most important for organizations. It describes the character, and also give possible signs of presence in the company's market leading monopoly. Articles 5-9 regulate the work of organizations in the dominant position in a particular sector of the economy.
3. Consisting of one article The third section of the law tells about such concepts as antitrust laws 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 includes its powers;
c) what are the rights of the authority in obtaining information of various kinds;
d) whether it is necessary to provide data to higher instances;
e) that include the duties of the antimonopoly authority in the issue of compliance with commercial secrets;
e) What is the promotion of bodies in the development of entrepreneurship and competition.
5. The fifth section reveals various types of monopolist enterprises in front of the reader. It contains four parts.
a) the mandatory execution of prescriptions and orders issued by the antimonopoly authority;
b) types of responsibility for violation of antimonopoly legislation;
c) obligations of commercial and non-profit enterprises in the event of non-fulfillment of the points of the Act under consideration;
d) responsibility for violation of the law by managers and other persons;
e) recovery of losses;
(e) The responsibility of persons of the federal antimonopoly authority in case of violation of the clauses of the law.
7. The last section establishes the procedure for adopting, executing or appealing the prescriptions that were issued by the antimonopoly authority.
Such is the structure of the initial law regulating the activities of dominant organizations. Gradually, many articles of this document became separate full acts.
Methods of testing violations of antitrust law
It is noteworthy that for the most part this law does not prohibit itself as such, but the effect that may appear after it. It is this fact that entails huge difficulties not only for business entities, but also for other persons and organizations.
The main complexity arises in determining the list of actions that can lead to various kinds of negative consequences affecting antitrust laws and regulation of entrepreneurial activities. If you understand that those or other points will lead to a violation of the legal act, you can safely plan the development of the organization and evaluate economic risks. In another case, there is simply no possibility for the normal process of work.
As a rule, in order to find out the negative effect of certain or other actions taken by the Organization, it is necessary to take a deep economic analysis. There is no single technique for checking. The cases of violation of antitrust laws are checked, based on the regulatory act No. 220, which is called this: "The procedure for analyzing the status of competition in the commodity market." This resolution was approved on April 28, 2010 by the Order of the FAS of the Russian Federation.
The peculiarity of the Russian anti-monopoly legislation is its formation in the conditions of transition from one business system to another, as well as an unusually high level of concentration compared to most countries.
The antimonopoly legislation of the Russian Federation includes the Constitution of the Russian Federation, the Law on Competition and the restriction of monopolistic activities in commodity markets, published in accordance with it federal laws, decrees of the President of the Russian Federation, Decree and Order of the Government of the Russian Federation. The purpose of antimonopoly regulation is the prevention, limitation and suppression of monopolistic activities and unfair competition and ensuring conditions for the creation and effective functioning of commodity markets.
Antimonopoly authorities in the territory of the Russian Federation is the Federal Antimonopoly Authority - the Ministry of Antimonopoly Policy (previously - State Committee. According to antimonopoly politics). In accordance with the legislation, the federal authority has the right to create territorial bodies and empower them with relevant powers.
Consider the features of Russian antimonopoly legislation compared to the US law.
By virtue of historical reasons, in the Russian Federation, the most attention is paid to the regulation of abuse of an economic agent with its dominant position. At the same time, it is possible to withdraw goods from the treatment to maintain a deficit and price increases, imposing a contract with the counterparty, which is not favorable or not related to the subject of the contract, the inclusion of discriminatory conditions in the contract ( price discrimination), creation of obstacles to entry into the market and exit from the market to other firms, monopoly overestimation and lower prices, etc. This feature of the legislation is due high levels Concentrations, as a result of which a significant number of markets were under the control of one or several firms, and the practice of disagreement, which takes place in the United States, turned out to be inapplicable.
Secondly, the antimonopoly legislation of the Russian Federation distinguishes vertical and horizontal agreements. Horizontal agreements that make the direct damage of competition immediately fall under the law. At the same time, concerted actions of competitors are considered illegal in the case when the share of the participants in the amount of the agreement exceeds 35% in the market of a certain product. In some cases, a cartel agreement is allowed between competitors if the coordinated policy of the cartel participants leads to the market saturation by goods, improving the quality of goods, an increase in the competitiveness of goods in the foreign market, or if the positive consequences of the cartel activity exceed the loss of price rigidity.
The regulation of vertical bonds is more liberal. It is allowed to use vertical agreements as a preventive agent in the threat of abuse of the dominant company with its position.
Third, one of strong Parties Russian antimonopoly legislation is the definition of a dominant firm through the functional characteristic - the ability to have a decisive effect on the conditions for the treatment of goods in the market. This allows you to use this definition in certain extended. At the same time, the company cannot be recognized by the dominant market, less than 35%. With a share of 35 - 65%, the burden of proof of the dominant position lies on the antimonopoly authority, and with a share of more than 65% on the company. In this case, the market share matters for a long time.
Fourth, attitudes towards mergers in Russian antimonopoly legislation are based on a quantitative criteria - a certain proportion of assets and the market. The carrying amount of assets acts as the main parameter to appeal to antitrust authorities to obtain consent to the creation, reorganization and liquidation of firms. In this case, the lower threshold of the size of the total balance value Assets of economic agents during the merger set in 100 thousand minimum sizes wages, and the aggregate market share after the merger should not exceed 35%. In addition, mergers and acquisitions (in Russian practice - accession) can be resolved if their positive effects exceed negative. The latter item is most important in the light of the formation of vertically and horizontally integrated structures of the type of petroleum, gas and metallurgical holdings.
Finally, the main methods for regulating monopolies in Russia are:
· State control over the creation, reorganization, liquidation of commercial organizations and their associations;
· State control over compliance with antitrust laws in the acquisition of shares (shares) in the authorized capital of commercial organizations and other cases;
· Forced separation (allocation) of commercial organizations and non-profit organizations engaged in entrepreneurial activities;
· Price regulation of monopolistic behavior by establishing a price limit, and limiting price change ratios, profitability limit, establishment.
Antimonopoly legislation represents a system of regulatory acts aimed at ensuring the conditions for creating and efficiently functioning the markets of goods, services and financial means, as well as to regulate relations related to monopolistic activities, and suppression.
The main objectives of the antimonopoly legislation:
- definition of organizational and legal framework warnings, restrictions and suppression of monopolistic activities and unfair competition;
- providing conditions To create and efficiently function the markets of goods, services and financial resources.
The first goal is a narrow specialist, inherent only with antitrust laws, and the second is wider, can be marked as one of the activities of the entire civil law.
The norms of antitrust laws are reflected in the processes of state intervention in economic relations, the processes of the interpenetration of private and public began legal regulation. For antitrust laws, a combination of norms of various branches of law is characterized: civil law, administrative, criminal. However, the legal relations regulated by antimonopoly legislation have for the most part civil law properties.
The structure of antitrust laws
From federal laws that are essential for antitrust regulation, except for the Federal Law "On Protection of Competition", the following can be called.
Ensuring competition protection acts as one of the mechanisms supporting and ensuring the efficiency of the economy of any country in all directions.
Economics Competition recognizes rivalry of market relations for the best conditions and results commercial activities, that is, a civilized legalized form of struggle for the existence and one of the most effective selection and regulation mechanisms in a market economy.
And although competition is prerequisite development of entrepreneurial activity, means of regulating the main economic processes, satisfying the interests of consumers, should be recognized as a legitimate provision that competition is not capable of self-regulation in due measure. Therefore, to ensure the optimal functioning of the market, further improvement of Russian competitive legislation is needed.
Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition" introduced a legal concept "Competition" - the rivalry of economic entities, in which the independent actions of each of them are eliminated or limited to the possibility of each of them unilaterally affect general terms and Conditions The appeals of goods at the relevant product market (clause 7 of Article 4 of the Law).
In order to protect economic entities from unscrupulous competition, the state provides a set of measures aimed at ensuring the conditions for market competition. Thus, state antitrust regulation and control includes a complex of economic, administrative and legislative measures that are within the competence of the state and aimed at ensuring the conditions for market competition, as well as to prevent excessive monopolization of the market, which threatened the normal functioning of the market mechanism. The aforementioned Law No. 135-FZ under unscrupulous competition means any actions of economic entities (groups of persons), which are aimed at obtaining advantages in the implementation of entrepreneurial activities, contradict the legislation of the Russian Federation, customs of business turnover, the requirements of respectableness, intelligence and justice and caused or may cause losses Another business entities - their business reputation (paragraph 9 of Art. 4 of the Law) were harmful to competitors.
The antimonopoly legislation of the Russian Federation is based on the provisions of the Constitution of the Russian Federation, the Civil Code of the Russian Federation, federal laws. Relationships that are related to the protection of competition, including with the prevention and suppression of monopolistic activities and unscrupulous competition, are also governed by the RF government decrees, the regulatory legal acts of the federal antimonopoly authority in the cases provided for by antitrust laws.
Sold in this case are the provisions of the Constitution of the Russian Federation, in accordance with which the unity of economic space is guaranteed in the Russian Federation, the free movement of goods, services and financial resources, support for competition, freedom economic activity (Article 8), no economic activity is allowed to monopolize and unfair competition (paragraph 2 of Art. 34), in the jurisdiction of the Russian Federation there is the establishment of the legal foundations of a single market, that is, the federal level of antimonopoly legislation is established (p. "F Art. 71), the territory of the Russian Federation does not allow the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources (paragraph 1 of Art. 74).
The Civil Code of the Russian Federation establishes the equality of the participants of the relations regulated by him, the need for the unimpeded exercise of civil rights, ensuring the restoration of violated rights, their judicial protection. So, the plenum of the Supreme Arbitration Court of the Russian Federation in the decision of June 30, 2008 No. 30 "On some issues arising from the use of arbitration courts of antimonopoly legislation" indicated that the norms of the Civil Code of the Russian Federation, on which antitrust laws are founded, in particular, Article 1 of the Civil Code of the Russian Federation, which is established a ban on the restriction of civil rights and freedom of the movement of goods, except when such a restriction is introduced by federal law (at the same time, the law on the protection of competition) and Article 10 of the Civil Code also applies to the number of laws prohibiting the use of civil rights in order to limit competition and abuse of the dominant position in the market.
Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition" defines organizational and legal basis Protecting competition, including prevention and suppression, monopolistic activities and unfair competition, prevent, restrictions, eliminating competition by authorities. The Competition Protection Act formulates requirements for business entities when they are entry into civil relations with other participants in civil turnover. A large role in regulating the protection and support procedures is owned by the Government of the Russian Federation and the acts published by him, among which it is possible to allocate the decision of the Russian Federation of July 5, 2010 No. 504 "On cases of admissibility of agreements between insurers working on the same commodity market for the implementation of joint Insurance or reinsurance activities ", which is recognized that although the agreements between the business entities leading to the restriction of competition are prohibited, but under certain conditions they can be recognized as permissible. Cases of admissibility of agreements between insurers working on the same product market, on the implementation of joint insurance or reinsurance activities (general exceptions).
Also, attention should be paid to the decree of the Government of the Russian Federation of April 1, 2010 No. 208 "On approval of the Regulations on the preliminary coordination of the features of the formation of the starting price of products on its sale on a commodity exchange", which establish the procedure for preliminary agreement with the antimonopoly body of the Formation of the Start Pricing on products on its sale on the commodity exchange. The order of such coordination is issued to a business entity on the results of consideration of the case on violation of antitrust laws.
And, for example, adopted in November 2007, the Decree of the Government of the Russian Federation from No. 769 "On agreements between the executive bodies of state power of the constituent entities of the Russian Federation and economic entities to reduce and maintain prices for certain types of socially significant food products" established that such agreements should It was for a period no later than April 30, 2008. But in practice, this model of relations between power and business turned out to be more in demand, and the data of the FAS recommendations began to serve as a guide to identify mutual obligations of the parties in the agreements of this kind. Such agreements include agreements on the restriction of trade allowances for the foodstuffs of the first need with leading network companies, agreements on the establishment of the limiting selling price of essential food products, etc. As an example, it is possible to refer to the agreement concluded by the Tver Region administration with RITM 2000, which was intended to ensure the further development of the leading trading network of the region - "Tver merchant", which includes not only investment issues for business expansion, but also social issues Responsibility, which assumed the implementation of Tver goods of adequate quality at an economically informed price with the mandatory availability of the social range of goods.
In order to implement the provisions of antitrust laws by the Decree of the Government of the Russian Federation of June 26, 2007 No. 409 "On approval of the conditions for recognizing the dominant provisions of the credit institution and the rules for establishing the dominant position of the credit institution" defines the conditions for recognizing the dominant provisions of the credit institution. The law "On Protection of Competition" found that it cannot be recognized as the dominant situation of the economic entity) whose share in the market of a certain product does not exceed 35%, except financial organization (Art. 5) for which the lower threshold valueseliminating the possibility of recognizing its dominant position. It cannot be recognized by the dominant position of the financial organization, whose share does not exceed 10% on the only market in the Russian Federation by the commodity market or 20% in the commodity market, contacting which the goods also draw on other commodity markets in the Russian Federation.
The dominant is recognized as the provision of a credit institution in the commodity market, which gives this organization the opportunity to provide a decisive impact on the general conditions for the treatment of services in the relevant market, and (or), to eliminate other economic entities from the commodity market, and (or) make it difficult to access the commodity market. Dominant position on the commodity market of several credit organizationsincluded in the group of persons acting within the borders of the commodity market is established in aggregate for a group of persons.
Important to ensure competition protection are the following bypass regulatory legal acts Antimonopoly Authority:
Order of the FAS of Russia dated April 28, 2010 No. 220 "On approval of the procedure for conducting an analysis of the status of competition in the commodity market", which actualized the procedure for analyzing the state of competition in the commodity market. Such an analysis is necessary to establish the dominant position of the economic entity in considering cases of violation of antimonopoly legislation, the implementation of state control over the economic concentration, maintaining the register of economic entities. It is also held in solving issues on the compulsory separation (allocation) of organizations.
Order of the FAS of Russia dated February 24, 2010 No. 89 "On approval of the administrative regulations of the Federal Antimonopoly Service for the execution of the state function to conduct inspections of compliance with the requirements of antimonopoly legislation." This Order approved the Administrative Regulations of the FAS Russia, which determines the timing and sequence of actions (administrative procedures) when conducting inspections on issues related to the competence of the service.
The procedure for the implementation of the following administrative procedures is regulated: the decision to conduct an audit; preparation for verification; check; drawing up an act on its results; Acquaintance with him the subject of verification; Taking action. The first sections of the inspections plans are located on the official sites of the FAS Russia and its territorial bodies on the Internet. Total time Checking is not more than 3 months. Checks are carried out in an outdoor form. According to the results of checks, the service includes acts of verifiable persons. The procedure for appealing the actions (inaction) of the service during the inspection is determined.
Order of the FAS Russia of April 17, 2008 No. 129 "On approval of the form of submission to the antimonopoly body of information when handling applications and notifications provided for by Art. 27-31 of the Federal Law "On Protection of Competition". In connection with the need for state control over the economic concentration, the creation of large commercial organizations (including by merging, accession) is carried out either with the prior consent of the FAS of Russia, or subject to the mandatory notification of the FAS of Russia. In some cases, the consent of the FAS Russia is required to acquire shares, shares in the authorized capital, property commercial organization. At the same time, paragraph 3.30 of the administrative regulations of the FAS Russia found that in the case of submission to the antimonopoly authority, not all of these documents and information, the antimonopoly authority notifies the applicant for five working days that the petition (notification) is not considered to be submitted indicating non-represented documents and Information. For example, the Federal Arbitration Court of the Moscow District acknowledged that the FAS RF was rightly returned the notification that did not meet the requirements of the current legislation (the decision of March 9, 2011 No. CA-A40 / 1195-11 in case No. A40- 99162 / 10-139-535).
You can also bring a number of other acts taken by authorized bodies, but nevertheless, all of the foregoing confirms that currently the current antimonopoly regulatory system includes federal legislation, and other regulatory documents authorized by authorities. However, it should be noted that regulations Often only clarify and duplicate federal legislation, which leads to certain difficulties in the enforcement process, and the legislation on the protection of competition requires improvement. This circumstance is repeatedly referred to the Chamber of Commerce and Industry of the Russian Federation, which in the concept of the development of the legislation of the Russian Federation for the period 2008 - 2011, in the concept of development of the legislation of the Russian Federation for the period up to 2012, it proposes to improve the legal basis of entrepreneurial activities, emphasizing that the current system currently antitrust regulation includes not only federal legislation, but also a number of methodical recommendations, orders and other regulatory documentsdeveloped by the antimonopoly authority, which clarify, and often duplicate federal legislation. Concepts include the most problematic issues and offer a list of changes to antitrust laws for solving them, a list of draft legislation to be developed and accepting, which cannot be discerned.
Speaking about the protection of competition, it is impossible not to say about the responsibility for the commission of violations of antimonopoly legislation, to which the law "On the Protection of Competition" refers to the abuse of an economic entity dominant position, which is expressed in action (inaction) by the dominant position of the economic entity, which are the result or may be prevented , restriction, elimination of competition and (or) infringement of the interests of other persons (Article 10). For example, the Federal Arbitration Court of the East Siberian District refused to recognize invalid solutions of the antimonopoly service, since the antimonopoly authority has been proven that the enterprise occupies a dominant position in the market for subscription and periodic delivery services printed publications, and the fact of evasion of the enterprise from the conclusion of the relevant agreement (Resolution of September 25, 2008 No. A74-953 / 2007-F02-9325 / 2007).
Also, violations of antitrust legislation include agreements or agreed actions of economic entities that limit competition (Article 11). Article 8 of the Law "On Competition Protection" determines that their actions in the commodity market are agreed by the agreed actions of economic entities, which are in advance each of these persons, their result corresponds to the interests of each of them, they are caused by the actions of other business entities and are not a consequence Creatures equally affecting all economic entities operating in the relevant commodity market. To circumstances, equally affecting all economic entities operating in a specific commodity market, this norm, in particular, refers the change in regulated tariffs, prices for raw materials used for the production of goods; Changing the price of goods in world commodity markets; A significant change in the demand for goods for at least one year or during the existence of the relevant commodity market, if such a period is less than one year. At the same time, to recognize the actions of economic entities, it is necessary that these actions have been committed by these persons on one commodity market; were not a consequence of circumstances, equally affecting all economic entities operating in this commodity market; They were known in advance to each of the business entities and their result corresponded to the interests of each of these individuals.
In clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 30.06.2008 No. 30 "On some issues arising from the use of arbitration courts of antimonopoly legislation" is explained that when analyzing the issue of whether the actions of economic entities in the commodity market are agreed, It should be borne in mind that the consistency of actions can be established and in the absence of documentary confirmation of the existence of an agreement on their commitment. The conclusion about the presence of one of the conditions to be established to recognize the actions coordinated, namely: to commit such actions in advance to each of the economic entities, can be made on the basis of the actual circumstances of their commitment. For example, the consistency of actions along with other circumstances may indicate the fact that they are committed by various market participants relatively uniformly and synchronously in the absence of objective reasons.
According to a specific case, the appellate instance left the decision in the Arbitration Court of the Stavropol Territory of June 15, 2011, which was recognized by legal regulations of the FAS management in the Stavropol Territory, No. 109 of 12/22/2010 and No. 105 of December 22, 2010 on bringing to the responsibility of JSC " Mukomol "and Makfa OJSC for violation of the requirements of paragraphs 1 and 6 of part 1 of article 11 of the Federal Law of July 26, 2006 No. 135-FZ (Resolution of the Sixteenth Arbitration Court of Appeal dated September 27, 2011 No. 16AP-2230/11). As follows from the case file, the control of FAS in the Stavropol Territory on the basis of the instructions of the FAS Russia of July 30, 2010 No. ATS / 24579 "On the strengthening of the work of the territorial bodies of the FAS of Russia for the control of commodity food markets in drought", as well as the instructions of the FAS Russia of 13.08 .2010 year No. IA / 3352-PR "On measures to strengthen anti-monopoly control over the increase in prices for agricultural products and products of its processing" and the instructions of the Prosecutor's Office of the Stavropol Territory were carried out control measures against enterprises engaged in the production and realization of flour in the Stavropol Territory. During the verification of the activities of OJSC Mukomol, the antimonopoly authority revealed the fact of concluding an agreement of the supply between the last and Makfa OJSC, in accordance with which Mukomol was supposed to supply McAFA OJSC in assortment, quantities at a price and within a time consulting In the contract. According to the results of the analysis of the dynamics of the prices supplied under this product agreement, it was revealed that on the establishment by the Parties unreasonably understated prices for specified Treaty, while maintaining significantly higher prices for other buyers. These data served as the basis for initiating an antimonopoly body of a violation of antimonopoly legislation, according to the results of the consideration of which these companies were attracted to administrative responsibility.
In art. 14 of the Law "On Protection of Competition" has been established for unscrupulous competition, and an exemplary list of the most characteristic forms of this type of offense are given: the distribution of false, inaccurate or distorted information that may cause losses to the economic entity or damage to its business reputation, misleading character, method and place of production, consumer properties, quality and quantities of goods or on its manufacturers, incorrect comparison of the employing subject of goods produced or sold by him with goods produced or implemented by other business entities, sale, exchange or other introduction to the turnover of goods, if At the same time, the results of intellectual activity and the equivalent means of individualization were ignorant legal entity, Individualization of products, works, services, illegal receipt, use, disclosure of information constituting a commercial, service or other secretly protected by law.
This list does not contradict, the list of actions specified in the norms of international law, for example, in paragraph 3 of Art. 10.BIS Convention for the Protection of Industrial Property, concluded in Paris on March 20, 1883.
Judicial practice focuses on identifying these signs in violations of legislation. Thus, in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 17, 2011 No. 11 "On some issues of the use of the special part of the Code of Administrative Offenses of the Administrative Offenses", it is envisaged that when analyzing the question of whether a concrete person performed acts act of unfair competition, Not only the provisions of Article 14 of the Law "On Protection of Competition", but also the provisions of Article 10-BIS of the Paris Convention on the Protection of Industrial Property, due to which the act of unfair competition is considered to be every act of competition, contrary to honest customs in industrial and trading matters.
As an example associated with unscrupulous competition in the financial services market, it is possible to bring the fact that claims from the FAS on the signs of violation of Art. 14 FZ "On Protection of Competition" to Home Credit End Finance Bank. The essence of the claim was that the bank hid from borrowers additional commissions, while receiving a competitive advantage in providing express loans. The Bank has indicated that loans are provided without a commission, but the Commission in the amount of 1.99% of the loan was indicated in the contract itself with the borrower. Thus, the provision of unreliable information on the cost of the loan was recognized by violation of antitrust laws.
But by the decision of the federal arbitration Court Of the Volga-Vyatka district dated September 7, 2011 No. F01-3618 / 11 in case No. A79-8284 / 2010 Activities of the antimonopoly authority, on the contrary, were recognized as unreasonable in terms of attracting open joint Stock Company Sberbank of Russia in the face of Chuvash branch No. 8613 to administrative responsibility, provided for in Article 14.31 Stretch 14.31 of the Administrative Code of the Russian Federation. The court did not agree with the antimonopoly authority and canceled the decision taken by him to bring to justice, since the antimonopoly authority incorrectly determined that the bank established unreasonably high prices financial Serviceswhich according to this body leads to the infringement of the interests of other persons. At the same time, the antimonopoly authority did not prove the influence of the Bank as a dominant business entity in the market of the considered banking services The behavior of other market participants in connection with the lack of causal relationship between the applicant's amendments to change the tariffs for their services and the actions of other credit institutions.
Lecture 8. Antimonopoly regulation
2. Antimonopoly legislation, its goals and objectives.
Development and conduct antimonopoly Policy refers to the number of most important economic functions of the modern state.
Conducting antimonopoly policy relies on the conclusion, according to which society carries economic and other losses from displacing a monopoly market competition.
Competition - This is a competitiveness of economic entities, which effectively limit the possibility of each one one-sided effect on the overall conditions for the production of goods and their appeal on the relevant market. It is a rivalry in which the most effective participants will win.
Competition is one of the most important element of the market, since it is the competition forces participants in economic relations to engage in the activities of the Society, is a mechanism for selection and regulation in a market economy. Competition refers to such properties of a market economy, without which market economy Do not exist at all.
Antimonopoly policy - this is a set of measures government controlledaimed at preventing, restriction and suppression of monopolistic activities, ensuring all economic entities equal terms and prevention of unfair competition.
State antitrust regulation of the economy includes two interconnected directions:
1) the development and adoption of special antimonopoly legislation;
2) the formation of a system of organs carrying out antitrust regulation and controlling compliance with antitrust laws.
In the main capitalist countries, antitrust laws were adopted after World War II: 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, antitrust legislation is one in its foundations. It, firstly, puts under the state control of the merger of companies, secondly, prohibits agreements and collisions of entrepreneurs and, thirdly, stops unscrupulous competition.
In Russia, the need for antimonopoly regulation was aware of the state power only by 1990, when the predecessor of the current Federal Antimonopoly Service was created - the State Committee of the RSFSR on Antimonopoly Policy and Support for New Economic Structures. And in 1991, the law "On competition and restriction of monopolistic activities in commodity markets" was adopted in the field of antimonopoly regulation.
Objectives and methods of antitrust regulation in Russia.
Antitrust regulation is valid in order 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 creating conditions for the effective functioning of commodity markets.
Strategic objectives of the antimonopoly policy and development of competition in Russia modern stage Was formulated by the President of the Russian Federation V.V. Putin 08.02.2008 in a speech at an extended meeting of the State Council "On the Strategy for Development of Russia until 2020.
The main goal of antitrust regulation in Russia is to control the economic concentration on commercial and financial marketswhich is necessary to prevent their monopolization.
Based on this, you can determine tasks of antitrust regulation:
- support for healthy competition;
Ensuring freedom of economic activity in the territory of the Russian Federation;
Suppression of monopolistic activities, as well as unfair competition in commodity markets;
Preventing the creation of obstacles to access to the commodity market or output from the commodity market to other business entities;
Creating conditions for the effective functioning of commodity markets.
The main instrument of state antitrust policy is a state-legal mechanism - antitrust laws and a system of legislative, executive and judicial authorities. With the help of antitrust laws, the state carries out legal and administrative regulation of monopolies, creating conditions for the reproduction of competition.
Antimonopoly legislation, its goals and objectives
The main federal law aimed exclusively for maintaining reached level And the further development of competition is the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition".
The Federal Law "On Protection of Competition" defines the organizational and legal foundations of the protection of competition.
Goals of the law There are ensuring 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 frameworks of competition of competition on commodity and financial markets in Russia. These include: a clear definition of a circle of transactions and actions that are committed with the prior consent of the antimonopoly authority; The determination of the dominant position of the economic entity in the commodity market is specified; A fundamentally new definition of prohibitions on various types of monopolistic activities is given; A comprehensive list of powers of the antimonopoly authority and the types of prescriptions, which he has the right to issue, etc.
The law develops antitrust laws and specifies restrictions and prohibitions for monopolistic activities. Law forbidden: abuse of an economic entity dominant position in the market; actions or agreements limiting competition; unfair competition.
Also, the law identifies general antimonopoly requirements for the order of all types of trades, competitions and auction authorities and extrabudgetary funds.
Strategic competitive policy tasks require compliance with certain principles and methods in its conduct. From the prevailing principles and methods You can allocate:
Assessing the impact on the competitive environment of protection measures from unfavorable foreign competition;
Antimonopoly control over compliance with competition legislation;
The use of restrictive measures;
Countering unscrupulous competition;
Monitoring economic concentration;
Reducing barriers to the entry of firms to the market and create new companies;
Antitrust regulation in industries natural monopoly;
Bans on anti-competitive actions of the authorities and management;
Placement Control state orders;
Market Analysis;
Ensuring competition at the global level.
Under restrictive measures Understand bans on monopolistic activities; unfair competition, which can lead to a limitation of competition; Direct intervention government agencies authorities in the activities of enterprises, etc.
Authorities are prohibited by providing benefits and advantages to individual companies. Competitive requirements for trading and auctions are established in the implementation of state procurement.
Law "On Protection Competition" prohibits agreed between business entities, which can lead to: establishing monopoly high or monopoly low prices; withdrawal of goods from circulation in order to create or maintain a deficit; inclusion in the contract of discriminatory conditions, which put the counterparty in an unequal position compared to other enterprises; Covering the counterparty to refuse to conclude contracts with individual buyers (customers).
Unfair competition - These are any actions of economic entities (groups of persons), aimed at obtaining advantages in the implementation of entrepreneurial activities that contradict the legislation of the Russian Federation, customs of business turnover, the requirements of respectfulness, intelligence and justice and caused or may cause losses to other economic entities - competitors - either caused Or they can harm their business reputation.
Not allowed unfair competition , including:
The spread of false, inaccurate or distorted information that may cause losses to the economic entity or damage its business reputation;
Misleading in relation to the nature, method and place of production, consumer properties, quality and quantity of goods or on its manufacturers;
An incorrect comparison of the employing subject of goods produced or sold by him with goods produced or implemented by other business entities;
Sale, exchange or other introduction into the turnover of goods, if at the same time the results of intellectual activity and the means of individualization of the legal entity, the means of individualization, works, services, services are illegally used;
Illegal receipt, use, disclosure of information constituting a commercial, official or other law protected by law.
The law provides for monitoring the economic concentration. Economic concentration - transactions, other actions, the implementation of which affects the state of competition. State control over the concentration is intended to prevent the worsening of the competitive environment and the elimination of the possibility of the situation of abuse of the dominant position. Therefore, the largest mergers and acquisition transactions are carried out in a permit after agreement with the antimonopoly authority. The same procedure provides for mergers and acquisitions with the participation of foreign firms.
Law provides for the basis of barriers to the entry of firms to the market and create new companies . The possibility of new sellers is a deterrent for manifestations of monopolism from firms already operating in the market. Education of new firms is also an important element of improving competitiveness.
Installed antitrust regulation in the sectors of the natural monopoly. The economic meaning of the natural monopoly lies in the existence of such an effect in the industry, in which only one firm can act on the market. This is typical of industries requiring large-scale investment in distribution networks, such as power supply, gas and water supply, telecommunications, railways, etc.
However, even for such industries, mechanisms are provided to achieve competitive results:
1) exemption superficient by the regulatory body;
2) conducting inspections with the imposition of large fines in identifying focusing by firms of their costs;
3) the establishment of tariffs as medium or smallest costs for a group of similar firms;
4) Conducting auctions for firms to receive the right to issue products or providing services in the agreed period.
Established prohibitions for anti-competitive actions of the authorities and management. The law is forbidden to make regulations and perform actions that limit the independence of enterprises create discriminatory or favorable conditions for some to the detrimental to others and thereby limit the competition, infringe the interests of enterprises or citizens.
Installed procedure and control in the field of public orders (procurement). If such purchases are transformed into guaranteed for sellers, the quality is reduced, prices are overstated, the competitive development of the economy is terminated. In order for this not happened, strict placement procedures and monitoring of these procedures have been developed.
To prevent and suppress monopolistic activity is conducted State Register RF . The inclusion of a business entity in the registry, the exclusion of the economic entity from the registry, the introduction of changes to the registry is carried out on the basis of the order of the FAS Russia, if the economic entity has a share of more than thirty-five percent on the relevant commodity market of the Russian Federation as a whole. The registry must include enterprises that are the only manufacturers in Russia of certain types of products.
1. What are the content and methods of antimonopoly regulation?
2. Name the problems of antitrust regulation.
3. Word the goals and objectives of the antimonopoly legislation.
4. List legislative measures to combat monopolistic activities in the economy.
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