Prohibition of monopolistic activities. Monopolies, their state regulation - abstract. Concept and types of monopolies

Concept and types of monopolies………………………………………………………4

Prohibition of monopolistic activities……………………..10

Conclusion……………………………………………………………...23

References…………………………………………………….24

Introduction

This work is devoted to the study of the legal regulation of monopoly in business activities. At this stage there is a legal problem - the formation and development of antimonopoly policy in Russia. In practice, this direction is just beginning to develop.

The purpose of my work is to study the legal regulation of monopoly in business activities by reviewing the legislation of the Russian Federation and scientific literature devoted to the study of this issue.

In my work I will try to reveal the concept and types of monopolies and study the issue regarding the prohibition of monopolistic activities.

When writing my coursework, I intend to use the works of such scientists as Zhilinsky S.E., Safiullin D.N., Totyev K.Yu., Belykh V.S. and others.

Concept and types of monopolies

The current Russian legislation does not have a general definition of the concept of “monopoly”. The term “monopoly” is used in regulations and legal literature to characterize: the dominant position of a business entity in the market, special powers (privileges, rights) of business entities to carry out any type of business activity in the market.

Despite such ambiguity in the characteristics of a monopoly, its legal essence lies precisely in a certain exclusive position of a business entity (or several of them) in the market, giving him (them) the opportunity to exert a decisive influence on the general conditions of circulation of goods (works, services) in this market (in mainly on their price).

Monopoly (monopoly position)- this is the dominant position of one or more business entities (groups of persons) in the relevant market.

It is necessary to distinguish between the main types of monopolies:

1) created as a result of the direct regulatory influence of the state;

2) formed as a result of independent actions of business entities without the direct regulatory influence of the state;

3) arising as a result of the possession of exclusive rights.

These types of monopolies can also be classified depending on whether they are protected from competition or not. The point is that some monopolies do not allow competition from other business entities on legal grounds. In the literature, these monopolies have received various names: “closed”, “legal”, “legal” monopolies 1 . These include: 1) monopolies directly regulated by the state, and 2) monopolies of holders of exclusive rights.

The remaining monopolies cannot be protected from competition, but must obey the economic laws of a competitive market (the interaction of supply and demand), which is the fundamental rule (principle) of a market economy and entrepreneurship.

Monopolies of the first type (monopolies directly regulated by the state) are created at the will of the state in order to ensure state and public interests. They are protected from competition from business entities that are not subjects of these monopolies. It seems that these monopolies can be called state monopolies in a broad sense, given their similar legal nature.

In the literature, three types of monopolies are usually distinguished:

a) a closed (legal) monopoly, protected from competition through legal restrictions (for example, a state monopoly);

b) natural monopoly - a sphere of the economy where the entire market is covered by one economic entity (for example, railway transportation);

c) open (temporary) monopoly, when one business entity temporarily becomes the only supplier of a product, and its competitors may appear in the same market later. 2

State monopolies are created in order to protect the economic interests of the state and consumers, strengthen security, foreign trade, military-political positions of the state, etc. These monopolies are established imperatively on the basis of legislative norms and are aimed mainly at ensuring public legal interests.

The implementation of a state monopoly is regulated by federal regulations (in particular, the Federal Laws “On State Regulation of Foreign Trade Activities” (Article 17-18), “On Precious Metals and Precious Stones” (Article 4), “On Military-Technical Cooperation Russian Federation with foreign states" (clause 2 of article 4, clause 1 of article 12), etc.).

The state monopoly is exercised through various means established in regulations. For example, a state monopoly on the export or import of certain types of goods (defined by federal law) is implemented through licensing of such activities. Licenses for its implementation are issued exclusively to special economic entities - state unitary enterprises, which, in accordance with the legislation of the Russian Federation and generally recognized international legal norms, are obliged to carry out transactions for the export (import) of goods. These transactions, carried out in violation of the state monopoly, are void (Article 17 of the Law on Regulation of Foreign Trade Activities).

Natural monopoly is a state of a product market in which satisfying demand in this market is more effective in the absence of competition due to the technological features of the production of these goods (services) and other reasons specified in the law (Article 3 of the Law on Natural Monopolies).

The law establishes the following so-called natural grounds for such monopolies:

1) a significant reduction in the production costs of certain goods (services) per unit of goods as the volume of their production increases;

2) goods (services) produced by subjects of a natural monopoly cannot be replaced in consumption by other goods;

3) the demand in a given product market for goods produced by natural monopolies is less dependent on changes in the price of this product than the demand for other types of goods.

The existence of this type of monopoly is explained by the fact that in certain areas of business activity, competition for objective economic reasons is ineffective due to the fact that one business entity can supply the entire market, having lower costs per unit of production than several competitors would have. However, in order for any field of activity to acquire the status of a natural monopoly, it must be recognized as such by the state. Therefore, in order to ensure the effective functioning of business entities operating in these areas, their receipt of economically justified profits, as well as achieving a balance of interests of consumers and entrepreneurs, the state declares such areas of business activity to be natural monopolies.

There is a list of areas of activity in which the natural monopoly regime is introduced:

transportation of oil and petroleum products via main pipelines;

gas transportation through pipelines;

rail transportation;

services in transport terminals, ports and airports;

public telecommunications and public postal services;

electric energy transmission services;

services for operational dispatch control in the electric power industry;

thermal energy transmission services;

services for the use of inland waterway infrastructure.

A subject of a natural monopoly is recognized only as an economic entity engaged in the production (sale) of goods under the conditions of a natural monopoly (Part 3 of Article 3 of the Law on Natural Monopolies).

In these areas of business activity, the state introduces a special legal regime for regulating and controlling the activities of natural monopolies. For this purpose, special regulatory bodies are formed, which are federal executive authorities that can create their own territorial bodies.

Bodies regulating natural monopolies may use the following methods of regulating the activities of natural monopoly entities:

price regulation, carried out by determining (establishing) prices (tariffs) or their maximum level;

consumers subject to mandatory servicing, and (or) establishing a minimum level of provision for them in the event that it is impossible to fully satisfy the needs for a product produced (sold) by a natural monopoly entity, taking into account the need to protect the rights and legitimate interests of citizens, ensure state security, and protect nature and cultural values.

Monopolies of the second type (the so-called market ones) are created as a result of independent actions of business entities when they carry out their activities under the influence of various factors in the market (economic, non-economic) without the direct regulatory influence of the state.

Such monopolies may appear in connection with the victory in fair competition over a certain business entity and the exit of other competitors from the market, through the concentration of capital and the unification of business entities, underdevelopment of the market, etc. In this situation, a business entity becomes the sole producer (seller) of a certain product for a certain time. At the same time, there are no legal restrictions on competition; other entities have the right to carry out similar business activities in this market and compete with each other.

And finally, about monopolies of the third type. A monopoly position may also arise from the possession (use) by a business entity of exclusive rights to the results of intellectual activity and equivalent means of individualization of the entrepreneur, products (works, services). These include rights to inventions, utility models, industrial designs, trademarks, service marks, appellations of origin of goods, brand names, etc. (Clause 1 of Article 138 of the Civil Code of the Russian Federation)

A business entity may occupy a monopoly position in the market for the use of these objects based on the very fact of legal recognition of the status of their owner (for example, holders of patents for inventions, industrial designs or certificates of registration of trademarks). Possession of rights to such objects puts the business entity in a position in which the use of these objects depends entirely on its discretion.

Prohibition of monopolistic activities

In accordance with paragraph 10 of Article 4, Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition” (as amended on November 29, 2010) (hereinafter referred to as the “Law on the Protection of Competition”) under monopolistic activity should be understood- abuse by an economic entity, a group of persons of its dominant position, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inactions) recognized in accordance with federal laws as monopolistic activities;

The following main features follow from the normative definition of monopolistic activity. Firstly, monopolistic activity is a type of human activity consisting of a set of actions, operations, and actions. And not only. Monopolistic activity also includes inaction.

Secondly, the Law on the Protection of Competition names the forms of monopolistic activity, and the legislator, and after him, scientists identify the concepts of “monopolistic activity” and “behavior”. Behavior can consist of actions and inactions; it is divided into legal and illegal. As for activity, it is a set of actions:

a) abuse of a dominant position;

b) agreements or concerted actions prohibited by antimonopoly legislation; other actions (inaction),

recognized as monopolistic activities in accordance with

with federal laws.

According to K. Yu. Totyev, monopolistic activity is a punishable offense. Like any offense, it (activity) includes an object, an objective side, a subject, a subjective side (the elements of the offense). Monopolistic activity is a type of economic activity. In turn, an offense is an unlawful, socially dangerous, guilty act of a person capable of delinquency. In this capacity, the offense includes the four elements mentioned above.

Thus, the object of the offense in this area is the competitive order (an integral part of the economic legal order).

The objective side of the offense lies in its illegality, harmful consequences, and the presence of a causal connection between these elements. In this case, illegality is understood as a violation of the prohibitions established in legal norms. In this context, the Law on the Protection of Competition contains a number of rules prohibiting the abuse of a dominant position by a business entity (Article 10), agreements or concerted actions of business entities that restrict competition (Article 11), and unfair competition (Article 14). In particular, it is prohibited:

establishing and maintaining a monopolistically high or monopolistically low price for a product;

withdrawal of goods from circulation if the result of such withdrawal was an increase in the price of the goods;

creation of discriminatory conditions, etc.

In relation to the implementation of monopolistic activities, harm represents negative (property, organizational, moral, etc.) consequences that arise for private and public persons. It is important to note that such harm does not occur in all cases, unless, of course, we equate monopolistic activity with an offense. In our opinion, the implementation of monopolistic activities by business entities gives rise to offenses

only when there is an element of an offense. In cases where losses arise during the implementation of monopolistic activities, then in order to recover them from the offender it is necessary to establish the existence of the losses themselves, justify their size and prove the cause-and-effect relationship between the unlawful behavior and the resulting losses according to the rules of Art. 15, 16 Civil Code.

Harmful consequences can be caused to the state and society as a whole. Such harmfulness is manifested in the fact that offenses generated by monopolistic activities limit the state’s implementation of public interests, encroach on competition and ultimately disorganize market relations. The causal connection between the unlawful behavior (action, inaction) of economic entities and the resulting consequences is an obligatory element of the objective side of the offense.

The subjects of monopolistic activity are:

a) business entities, including financial organizations;

b) groups of people.

The subjective side of monopolistic activity as

offense consists of two forms of guilt; intent or negligence. The question of the form of guilt of competition subjects depends on the attribution of such illegal activity to a particular offense.

Considering the forms of monopolistic activity, let's start with the category “abuse of monopoly position.”

Article 10 (clause 1) of the Law on Protection of Competition prohibits actions (inaction) of an economic entity occupying a dominant position, the result of which is or may be the prevention, restriction, elimination of competition and (or) infringement of the interests of other persons. The implementation of these actions (inaction) and the onset of harmful consequences is evidence of the economic entity’s abuse of its dominant position. The Law on Protection of Competition prohibits such actions (inaction). Contained in paragraph 1 of Art. 10 of the Law on the Protection of Competition, the list of prohibited actions (inactions) is open. Thus, it is prohibited to establish or maintain a monopolistically high or monopolistically low price for a product.

In accordance with paragraph 1 of Art. 6 of the Law on Protection of Competition, a monopolistically high price of a product (with the exception of a financial service) is the price set by an economic entity occupying a dominant position if it (the price) meets two criteria in total. First - this price exceeds the price that, in conditions of competition on a commodity market, comparable in terms of the quantity of goods sold over a certain period, the composition of buyers or sellers of goods (determined based on the purposes of purchasing or selling goods)

and conditions of access are established by business entities, not

included in the same group of persons with buyers or sellers of goods and not occupying a dominant position in a comparable product market. Secondly, this price exceeds the amount of expenses and profits necessary for the production and sale of such a product. The price of a product is not considered monopolistically high if it does not meet at least one of the specified criteria.

The parameters of a monopoly low price are formulated in Art. 7 of the Law on Protection of Competition. The same requirements as in relation to a monopolistically high price, but only with the indication of the criterion - “below the price”.

Monopoly prices are identified by antimonopoly authorities on the basis of Temporary Methodological Recommendations for Identifying Monopoly Prices adopted by the Ministry of Aviation Administration of the Russian Federation dated April 21, 1994 No. VB/2053.

Unilateral abuses by an economic entity of its monopoly position are the following types of offenses. They can be divided into two subspecies:

a) offenses that are directly related to the conclusion of the contract;

b) offenses that do not have such a direct connection.

The first include such offenses as:

imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract;

economically or technologically unjustified refusal or evasion from concluding a contract with individual buyers (customers) in the event of the possibility of production or supply of the relevant goods, as well as in the event that such refusal or such evasion is not expressly provided for by federal laws, regulatory legal acts of the President of the Russian Federation, The Government of the Russian Federation, authorized federal executive bodies or judicial acts.

The second violations include:

economically or technologically unjustified reduction or cessation of production of a product, if there is a demand for this product or orders have been placed for its supply if it is possible to produce it profitably, and also if such a reduction or such cessation of production of a product is not expressly provided for by legislation or judicial acts;

withdrawal of goods from circulation when the result of such withdrawal was an increase in the price of the goods;

creating obstacles to access to the product market or exit from the product market for other economic entities;

economically, technologically and otherwise unjustified establishment of different prices (tariffs) for the same product, unless otherwise established by federal law;

violation of the pricing procedure established by regulatory legal acts.

The Law on the Protection of Competition (subclause 8, clause 1, article 10) uses the concept of “discriminatory conditions”, which is quite broad in scope. Discriminatory conditions are conditions of access to the acquisition, sale, or other transfer of goods, under which an economic entity (several economic entities) is placed in an unequal position compared to another economic entity (or economic entities). The concept of “discriminatory conditions” practically covers most offenses in the field of antimonopoly regulation.

Requirements of Art. 10 of the Law do not apply to actions to exercise exclusive rights to the results of intellectual activity and equivalent means of individualization of a legal entity, means of individualization of products, works or services.

Collective behavior of economic entities in the form of agreements and concerted actions of entities that limit competition is an independent type of monopolistic activity of competition entities in the product market. The Law on Protection of Competition makes a distinction between the concepts of “agreement” and “concerted actions”.

Agreement - an agreement in writing contained in a document or several documents, as well as an agreement in oral form (clause 18 of Article 4). In the context of the Competition Law, "agreement" is a broad concept; it does not coincide with the concept of contract used in civil law. So, by virtue of paragraph 1 of Art. 420 of the Civil Code, a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations. Therefore, any contract is an agreement, but not every agreement is a contract. 3

In relation to civil law, a contract is a legal fact due to which

establishment, modification or termination civil rights

and duties (clause 1, article 8 of the Civil Code). Therefore, those agreements that do not fall under the civil contract regime are accordingly not subject to the general provisions of the Civil Code on contracts.

Concerted actions of economic entities - actions

entities on the commodity market, certifying the combination of the following conditions:

1) the result of such actions is in the interests of everyone

from the specified economic entities only on the condition that

their actions are known in advance to each of them;

2) the actions of each of these economic entities are caused by the actions of other economic entities and are not a consequence of circumstances that equally affect all economic entities in the relevant product market.

Such circumstances, in particular, may include:

changes in regulated tariffs;

changes in prices for raw materials used to produce goods;

changes in commodity prices on world commodity markets;

a significant change in demand for a product for at least one year or during the existence of the relevant product market, if such a period is less than one year.

Concerted actions are carried out by business entities without formalizing an agreement. This is exactly how the rule of paragraph 2 of Art. 8 of the Law on Protection of Competition, according to which the performance of actions by economic entities under an agreement does not apply to concerted actions.

That is, coordinated actions are those actions of economic entities that have received the approval (consent) of all entities, both in the organization of the actions themselves and in their results. To agree means to approve.

In economic dictionaries and literature the word “concentration”

means concentration of production, capital in one place

or in the same hands, predominance in the market of one or more

firms 4 In relation to economic concentration, it is possible

talk about the concentration of different components of the economy - production, capital, resources, economic entities

(for example, concentration of banks). There are transactions and other actions

legal means of economic concentration. Consequently, economic concentration (as well as coordination of economic activity) is the object of increased attention from antimonopoly authorities in order to avoid undue restrictions on competition in product markets. Therefore, it is no coincidence that Ch. 7 of the Law (Articles 27-35) regulates in detail public relations in the sphere of state control over economic concentration.

The Law on Protection of Competition (Clause 19, Articles 4, 12) specifically regulates so-called vertical agreements. According to paragraph 19 of Art. 4 “vertical” agreement - an agreement between business entities that do not compete with each other, one of which purchases the product or is a potential purchaser of it, and the other provides the product

or is its potential seller. As a general rule, “vertical” agreements are considered illegal, except for the cases provided for in Art. 12 of the Law on Protection of Competition. First of all, “vertical” agreements in written form are allowed, which are commercial concession agreements (Chapter 54 of the Civil Code). The law recognizes as legal “vertical” agreements between business entities, the share of each of which in any product market does not exceed 20%. Rules Art. 12 of the Law on Protection of Competition do not apply to “vertical” agreements between financial organizations.

As for “horizontal” agreements, they are not directly mentioned in the Law on Protection of Competition. However, in the literature (with reference to the antimonopoly law), a number of authors outline the range of agreements that fall under the regime of “horizontal” (cartel) agreements.

“Horizontal” agreements, as well as concerted actions, mean agreements (concerted actions) between competitive entities (potential competitors) operating in the market of one product (interchangeable goods), i.e., there is a so-called cartel conspiracy. Law on the Protection of Competition ( Article 11) contains an absolute ban on agreements or concerted actions of business entities that restrict competition. At the same time, in the Law

There are no requirements for business entities operating in the market for one product. Article 11 of the Law on Protection of Competition provides an approximate list of prohibited “horizontal” agreements and concerted actions of business entities that can lead to:

to establishing or maintaining prices (tariffs), discounts,

allowances (surcharges), mark-ups;

increasing, decreasing or maintaining prices at auctions;

division of the commodity market according to the territorial principle, the volume of sales or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers);

economically or technologically unjustified refusal to enter into contracts with certain sellers or buyers (customers), unless such refusal is expressly provided for by acts of federal legislation or judicial acts;

imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract (unreasonable demands for the transfer of financial assets, other property, including property rights, as well as agreement to enter into an agreement subject to the inclusion of provisions regarding goods in which the counterparty is not interested , and other requirements);

reduction or cessation of production of goods for which there is a demand or for the supply of which orders have been placed, if it is possible to produce them profitably;

creating obstacles to access to the product market or exit from the product market for other economic entities;

establishing conditions for membership (participation) in professional

and other associations, if such conditions lead or may lead to the prevention, restriction or elimination of competition, as well as to the establishment of unreasonable membership criteria that are obstacles to participation in payment or other systems, without participation in which competing financial organizations will not be able to provide the necessary Financial services.

The Law on Protection of Competition contains prohibitions not only

in relation to economic entities when they carry out

monopolistic activity. The activities of state authorities, local self-government bodies, other bodies or organizations performing managerial functions, as well as state extra-budgetary funds, the Bank of Russia, the individual acts and actions (inactions) of which are aimed at restricting competition (Article 15) are also recognized as unlawful. In particular, the following are prohibited:

imposing restrictions on the creation of economic entities in any field of activity, as well as establishing prohibitions or imposing restrictions on the implementation of certain types of activities or the production of certain types of goods;

unreasonable interference with the activities of business entities;

establishing prohibitions or introducing restrictions regarding the free movement of goods in the Russian Federation, other restrictions on the rights of business entities to sell, buy, otherwise acquire, or exchange goods;

giving instructions to business entities on priority deliveries of goods for a certain category of buyers (customers) or on concluding contracts as a priority;

establishing for purchasers of goods restrictions on the choice of business entities that provide such goods.

We must pay special attention to the following circumstances.

1. Along with state authorities and local self-government bodies, the Law on the Protection of Competition names other bodies and organizations that carry out management functions. These include, for example, the Central Bank of the Russian Federation and state extra-budgetary bodies. Some non-profit organizations (for example, self-regulatory organizations) can also perform public functions.

2. The Law on the Protection of Competition (clause 2 of Article 15) prohibits the vesting of state authorities of the constituent entities of the Federation and local self-government bodies with powers, the implementation of which leads or may lead to the prevention, restriction, or elimination of competition, except in cases established by federal laws.

3. A ban has been established on combining the functions of federal

executive authorities, executive authorities

subjects of the Russian Federation, other authorities, local governments and the functions of business entities, except for cases established by federal laws, decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation, as well as vesting business entities with the functions and rights of these bodies, including the functions and rights of state bodies control and supervision (clause 3 of article 15).

I agree with the opinion of the team of Professor V.S. Belykh, who believe that the exception to the general rule on the prohibition of combining functions also applies to business entities that may be endowed with certain rights and functions of public authorities. 5

Unlawful agreements or concerted actions that restrict competition between executive authorities, local governments, other bodies or organizations, as well as state extra-budgetary funds, the Central Bank of the Russian Federation, are prohibited. In accordance with Art. 16 of the Law on Protection of Competition, agreements or concerted actions that may lead to:

to increase, decrease or maintain prices (tariffs), except for cases where such agreements are provided for by federal laws, regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation;

economically, technologically and otherwise unjustified establishment of different prices (tariffs) for the same product;

division of the commodity market according to the territorial principle, the volume of sales or purchase of goods, the range of goods sold, or the composition of sellers or buyers (customers);

restricting access to the product market, exiting the product market or eliminating economic entities from it.

The Law on the Protection of Competition does not allow (unlike business entities) the above-listed bodies and organizations to present evidence that the individual acts and actions they have adopted, as well as the agreements reached or the concerted actions carried out by them can be considered acceptable.

Conclusion

The state of the competitive environment in Russia is significantly influenced by the monopoly of manufacturing enterprises. In our country, monopoly, generated by public (state) property, at one time reached gigantic proportions and manifested itself in all directions and levels.

Today, an important task for Russian legislation is the development and establishment of antimonopoly and antidumping areas.

The purpose of my work was to study the legal regulation of monopoly in business activities by reviewing the legislation of the Russian Federation and scientific literature devoted to the study of this issue.

My work defines the concept and types of monopolies and addresses the issue of prohibiting monopolistic activities:

Prohibition on the abuse of a dominant position by an economic entity;

Prohibition of competition-restricting agreements or concerted actions of economic entities;

Admissibility of "vertical" agreements;

Admissibility of actions (inaction), agreements, concerted actions, transactions, other actions;

Prohibition of unfair competition.

In the future, I see it possible to study in more depth the issue of legal regulation of monopoly, by revealing issues related to the competence of the Antimonopoly authorities and sanctioning for violations of antimonopoly legislation.

Bibliography

Regulatory acts:

Constitution of the Russian Federation - Articles 8, 10, 11, 34, 74, 77.

Paris Convention for the Protection of Industrial Property of March 20, 1883 as of July 14, 1967 // Rights to the results of intellectual activity. Sat. regulations. M., 1994.

Civil Code of the Russian Federation - Articles 10, 138, 139, 168, 169, 1033, 1222.

Federal Law of August 17, 1995 N 147-FZ “On Natural Monopolies” (as amended on December 25, 2008)

Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition” (as amended on November 29, 2010)

Decree of the Government of the Russian Federation of March 9, 1994 N 191 “On the state program for the demonopolization of the economy and the development of competition in the markets of the Russian Federation (main directions and priority measures)” (as amended on September 4, 1995)

Temporary methodological recommendations of the State Committee for Administrative Offenses of the Russian Federation dated April 21, 1994 N VB/2053 on identifying monopoly prices.

Literature:

Safiullin D. N. Theory and practice of legal regulation of ho-

economic ties in the USSR.

Raizberg B. A., Lozovsky L. Sh., Starodubtsev E. B. Modern

economic dictionary, 2009

Zhilinsky S. E. Legal basis of entrepreneurial activity (entrepreneurial law). Lecture course. SPS "Garant"

Totyev K.Yu. Competition law (legal regulation of competition). Textbook, M., 2000..P. 32-33

“Business Law of Russia”, ed. V.S. Belykh, 2009 ATP "Garant"

http://www.garant.ru/

1 Kheifets I.Ya. Personal rights and their economic purpose in the USSR and the West. M., 1930. P.95; Civil law. Textbook / Answer. ed. E.A. Sukhanov. P.629; Dolan E.D., Lindsay D. Market: a microeconomic model. St. Petersburg, 1992. P. 194.

2 Totyev K.Yu. Competition law (legal regulation of competition). Textbook, M., 2000..P. 32-33

3 Safiullin D. N. Theory and practice of legal regulation of economic relations in the USSR. P. 109

4 Raizberg B. A., Lozovsky L. Sh., Starodubtsev E. B. Modern

economic dictionary. P. 162

5 " Business law Russia”, ed. V.S. Belykh, 2009 ATP "Garant"

(especially in conditions of systemic... Regulation of natural monopolies in the Russian Federation Coursework >> Economics

The question of the essence of natural monopolies, ways their reform and state regulation in Russia acquired... companies in industries related to natural monopolies, their state regulation(especially in conditions of systemic...

Monopolistic activity is the abuse by an economic entity (group of persons) of its dominant position, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inactions) recognized as monopolistic in accordance with federal laws (Art.

4 of the Competition Law).

From the above definition it follows:

1) monopolistic activity is an offense aimed at preventing, limiting or eliminating

1 See: Order of the FAS Russia dated December 22, 2006 No. 337 “On approval of the forms of acts adopted by the commission to consider the case of violation of antimonopoly legislation” // Rossiyskaya Gazeta. 2007. 31 Jan.

330 Section III. Public organization of business activities

lack of competition. At the same time, the Law on Competition in some cases establishes a list of prohibitions of such activities, from which exceptions cannot be made either by the antimonopoly authority or by the court (for example, setting monopoly high (low) prices, imposing unfavorable contract terms on the counterparty, etc.), and in In other cases, it allows exceptions that can be made on the basis of the rules of reasonableness when deciding whether the antimonopoly authority should prohibit or permit any type of monopolistic activity (for example, in agreements and concerted actions).

As a rule of reasonableness, the Competition Law in Art. 13 defines the four conditions adopted in the EU for the admissibility of agreements and concerted actions: -

they do not impose restrictions on participants in such actions or third parties that are inconsistent with achieving the goals of such actions; -

they do not create an opportunity for individuals to eliminate competition in the relevant product market; -

they result in improving the production (sales) of goods or stimulating technical (economic) progress or increasing the competitiveness of goods on the world market; -

they result in consumers receiving advantages (benefits) commensurate with the advantages (benefits) received by business entities as a result of such actions;

2) monopolistic activity is characterized through the elements of the offense: object, objective side, subject and subjective side. The following components of monopolistic activity are distinguished: abuse by an economic entity of its dominant position in the market for a certain product; agreements or concerted actions of economic entities on the market for a certain product that limit competition; acts and actions (inaction) of executive authorities and local governments aimed at limiting competition; agreements or concerted actions of executive authorities and

1 See: Totyev K. Yu. Competition and monopolies. Legal aspects of regulation. M., 1996. S. 68 - 72.

local governments that limit competition; actions that may lead to the prevention, restriction or elimination of competition in the bidding and selection of financial institutions; illegal provision of state or municipal assistance; unfair competition.

It is prohibited for an economic entity (group of persons) to abuse its dominant position in the market (Art.

10 of the Competition Law).

An offense is recognized as the activity of an economic entity (group of persons) that simultaneously meets two conditions: 1)

the economic entity occupies a dominant position (quantitative characteristic); 2)

abuses his position by limiting competition (qualitative sign), for example, sets a monopolistically high or monopolistically low price for a product, withdraws goods from circulation in order to create or maintain a shortage in the market or increase prices, imposes unfavorable contract terms on the counterparty, and commits other prohibited actions.

The burden of proving the dominant position of an economic entity in the market lies with the FAS Russia. In establishing the fact of a dominant position, the FAS Russia must determine the type of market, the composition of the sellers and buyers participating in it, examine the structure of the market and its openness to international and interregional trade. If an economic entity disagrees with the recognition of its position as dominant, the arbitration court evaluates compliance with the FAS of Russia.

these rules for establishing this fact.

FAS Russia maintains a Register of business entities that have a market share of a certain product of more than 35%. Rules for the formation and maintenance of the specified register

1007 No. 898. Decision to include an economic entity

1 For more details, see: Entrepreneurial (economic) law / Responsible. ed. O. M. Oleinik: In 2 vols. P. 481-498.

2 See: Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 30, 1998 No. 32 “Review of the practice of resolving disputes related to the application of antimonopoly legislation” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. No. 5. P. 88.

3 SZ RF. 2007. No. 52. Art. 6480.

332 Section III. Public organization of business activities

in the register can be appealed to the arbitration court. The register is open and published annually as of January 1.

In cases provided for by the Competition Law, such actions of a business entity can be recognized as lawful if it proves that the positive effect of its actions exceeds the negative consequences for a given product market (Article 13).

Agreements or concerted actions of economic entities holding a dominant position in the market for a certain product aimed at restricting competition (Article 11 of the Competition Law), for example agreements aimed at establishing, reducing or maintaining prices, are prohibited; for the division of the commodity market on any basis (territorial, composition of participants, volume of products sold or purchased), etc. Such agreements are prohibited and are duly declared invalid unless business entities prove that the positive effect of their actions will exceed the negative consequences for market.

Vertical agreements are allowed, i.e. agreements between business entities that do not compete with each other and are sellers and buyers in relation to each other, for example, commercial concession agreements, agreements of business entities, the share of each of which in the product market does not exceed 20%, as well as some other agreements and concerted actions (Articles 12, 13 of the Competition Law).

The activities of economic entities to coordinate the economic activities of other economic entities, which may result in restriction of competition, are also considered monopolistic. Such activity is prohibited and is the basis for judicial liquidation of the named organizations at the request of the antimonopoly authority (Article 10 of the Competition Law).

Anti-competitive agreements are also prohibited under foreign law. However, the criteria for classifying agreements as anticompetitive may vary in different countries. In the United States, an anticompetitive agreement is any agreement, association or conspiracy to restrict competition. The law does not provide a list of such restrictions; they are

Chapter 9. Antimonopoly regulation

are determined by judicial practice. In Germany, France and the UK, horizontal (cartel agreements between enterprises) and vertical (agreements on resale prices, doing business only with certain enterprises, binding agreements, etc.) restrictions on competition are prohibited. In Japan, the criterion for assessing an agreement as anticompetitive is that it restricts competition excessively. The EU prohibits all agreements between undertakings, decisions of associations of undertakings and concerted practices that are likely to prejudice trade between Member States and which have the purpose or effect of preventing, restricting or distorting competition within the common market. An approximate list of such violations is provided.

A feature of Russian legislation on the protection of competition is the prohibition of federal executive authorities, state authorities of constituent entities of the Russian Federation, local government bodies, state extra-budgetary funds, the Bank of Russia from adopting acts and taking actions (inaction) that could lead to restriction of competition, except in cases provided for federal law (Article 15 of the Competition Law).

In particular, it is prohibited to introduce restrictions on the creation of new business entities in any field of activity; unreasonable obstruction of the activities of economic entities; establishing bans on the sale (purchase) of goods from one region of the Russian Federation to another, etc.

A guarantee of ensuring competition is also the ban on combining the functions of government bodies and the functions of economic entities, except for cases provided for by federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation.

Agreements or concerted actions between federal executive authorities, state authorities of constituent entities of the Russian Federation, local self-government bodies are prohibited.

1 Cartel (French cartel) is one of the main forms of capitalist monopolies, an association of entrepreneurs whose participants agree on the size of production, sales markets, terms of sale, prices, payment terms, etc., while maintaining production and commercial independence.

334 Section III. Public organization of business activities

management, state extra-budgetary funds, the Bank of Russia or between them and business entities, limiting competition by increasing, decreasing or maintaining prices; market division, etc. (Article 16 of the Competition Law). Such agreements are prohibited and are duly declared invalid.

Actions that could lead to the prevention, restriction or elimination of competition during bidding are prohibited, including coordination by bidding organizers of the activities of bidding participants; creating advantages for any of the bidding participants, restricting access to bidding, etc. (Article 17 of the Competition Law).

Federal executive authorities, executive authorities of constituent entities of the Russian Federation, local governments, state extra-budgetary funds, natural monopoly entities select financial organizations to provide financial services (services of credit institutions, professional participants in the securities market, lessors, insurers) through an open competition or open auction in accordance with the provisions of Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs.”

Violation of these rules is grounds for the court to declare the relevant transactions or trades invalid, including at the request of the antimonopoly authority.

Illegal provision of state or municipal assistance is prohibited (Articles 20 - 21 of the Competition Law). Such assistance can be provided for the purposes of: ensuring livelihoods in the Far North; conducting basic research; protection environment; cultural development; production of agricultural products; support for small businesses carrying out priority activities; social services for the population, in particular support for unemployed citizens.

It is not state or municipal assistance, and therefore is allowed: provision of benefits

1 SZ RF. 2005. No. 30. Part I. Art. 3105.

to an individual on the basis of a federal law, a judicial act, or the results of auctions; assignment of state or municipal property to business entities with the right of economic management or operational management; transfer of state or municipal property to individuals in order to eliminate the consequences of emergency situations or military operations; provision to individuals of a budget loan, subsidy, subvention, budget investment provided for by the law on the budget.

The Competition Law provides for the procedure for providing state or municipal assistance and the consequences of its violation. In particular, if acts providing such assistance are adopted in violation of the Competition Law, they may be declared invalid in whole or in part by the court, and the property transferred under them may be returned to state or municipal ownership.

Unfair competition is prohibited - these are any actions of business entities (groups of persons) that are aimed at obtaining advantages in business activities, are contrary to the law, business customs, the requirements of integrity, reasonableness and fairness and may cause losses to other business entities - competitors or damage their business reputation (Article 4 of the Competition Law). As an offence, unfair competition is not permitted. An approximate list of elements of unfair competition is given in Art. 14 of the Competition Law: 1)

dissemination of false, inaccurate or distorted information that may cause losses to a business entity or damage its business reputation (discredit, defamation); 2)

misleading consumers regarding the nature, method and place of production, consumer properties, quality and quantity of the product or its manufacturers; 3)

incorrect comparison by an economic entity of the goods produced or sold by it with the goods of other economic entities; 4)

sale of goods with illegal use of the results of intellectual activity and equivalent means of individualization of a legal entity, its products, works, services (company name, trademark, etc.);

5) illegal receipt, use, disclosure of information constituting commercial, official and other secrets protected by law.

Monopolistic activity- this is the abuse by an economic entity (group of persons) of its dominant position, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inactions) recognized in accordance with the law as monopolistic (Article 4 of the Competition Law).

Thus, monopolistic activity is qualified as an offense aimed at preventing, limiting or eliminating competition, characterized by a certain composition: object, objective side, subject, subjective side. At the same time, the Competition Law in some cases establishes a list of unconditional prohibitions of such activities (for example, setting monopolistically high (low) prices, imposing unfavorable contract terms on a counterparty, etc.), and in other cases provides exceptions that allow monopolistic activity based on the rules of reasonableness ( for example, when evaluating agreements and concerted actions).

Thus, based on the rules of reasonableness, agreements or concerted actions are permissible if they:

- do not impose restrictions on their participants or third parties that are inconsistent with achieving the goals of such agreements and actions;
- do not create an opportunity for individuals to eliminate competition in the relevant product market;
- result in improving the production (sales) of goods or stimulating technical (economic) progress or increasing the competitiveness of goods on the world market;
- result in consumers receiving advantages (benefits) commensurate with the advantages (benefits) received by business entities as a result of such agreements and actions (Article 13).

The Competition Law identifies the following elements of monopolistic activity:

1) abuse by an economic entity (group of persons) of its dominant position in the market(Article 10 of the Competition Law). An offense is recognized as the activity of an economic entity (group of persons) that simultaneously meets two conditions: the economic entity occupies a dominant position (quantitative attribute) and abuses its position by limiting competition (qualitative attribute): for example, sets a monopoly high or monopolistically low price for goods, withdraws goods from appeals for the purpose of creating or maintaining a shortage in the market or increasing prices; imposes unfavorable contract terms on the counterparty and commits other prohibited actions.

The burden of proving the dominant position of an economic entity in the market lies with the FAS Russia, which must determine the type of market, the composition of sellers and buyers participating in it, examine the structure of the market and its openness to international and interregional trade 1 . If an economic entity does not agree with the recognition of its position as dominant, the arbitration court evaluates the compliance of the FAS Russia with the rules for establishing this fact. The actions of an economic entity occupying a dominant position in the market can be recognized as lawful if it proves that the positive effect of its actions exceeds the negative consequences for a given product market (Article 13).

FAS Russia maintains a Register of business entities that have a market share of a certain product of more than 35%. The decision to include a business entity in the Register can be appealed to the arbitration court. The register is open;

2) agreements between business entities - competitors occupying a dominant position in the market for a certain product, aimed at limiting competition, are recognized as a cartel and are prohibited. These include, for example, agreements aimed at establishing, reducing or maintaining prices; to divide the commodity market on any basis (territorial, composition of participants, volume of products sold or purchased), etc. Such agreements are invalid unless business entities prove that the positive effect of their actions will exceed the negative consequences for the market (Article 11 Competition Law).

Agreements between business entities that do not compete with each other and are sellers and buyers in relation to each other (vertical agreements) are allowed (for example, commercial concession agreements, agreements of business entities, the share of each of which in the product market does not exceed 20%, some other agreements and concerted actions (Articles 12 and 13 of the Competition Law)).

Other countries also prohibit cartels, although the criteria for classifying agreements as cartels may vary from country to country. Thus, in the United States, any agreement, association or conspiracy to restrict competition is recognized as an anticompetitive agreement. In Germany, France and the UK, horizontal (cartel agreements) and vertical (agreements on resale prices, dealing only with certain enterprises, binding agreements, etc.) restrictions on competition are prohibited. In Japan, the criterion for assessing an agreement as anticompetitive is that it restricts competition excessively. The EU prohibits all agreements between undertakings that are likely to harm trade between Member States and have the purpose or effect of restricting competition within the common market;

3) concerted action business entities - competitors are aimed at limiting competition (for example, at establishing, reducing or maintaining prices; at dividing the product market on any basis (territorial, composition of participants, volume of products sold or purchased), etc.). Such agreements are declared invalid unless business entities prove that the positive effect of their action will exceed the negative consequences for the market (Article 11 1 of the Competition Law);
4) acts and actions (inaction) federal executive authorities, state authorities of the constituent entities of the Federation, local governments, organizations involved in the provision of state and municipal services, state extra-budgetary funds, the Bank of Russia can lead to restriction of competition, except for cases provided for by federal law (Article 15). In particular, it is prohibited to introduce restrictions on the creation of new business entities in any field of activity, to unreasonably impede the activities of business entities, to establish bans on the sale (purchase) of goods from one region of the Russian Federation to another, etc.

A guarantee of ensuring competition is also a ban on combining the functions of government bodies and business entities, except for cases provided for by federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation;

5) agreements or concerted actions between federal executive authorities, state authorities of constituent entities of the Federation, local governments, organizations involved in the provision of state and municipal services, state extra-budgetary funds, the Bank of Russia or between them and business entities that limit competition by increasing, decreasing or maintaining prices, division market, etc. (Article 16 of the Competition Law);
6) actions of auction organizers, which may lead to restriction of competition when conducting tenders, requesting price quotations for goods, requesting proposals, concluding agreements with financial organizations and agreements in relation to state and municipal property, including coordination by auction organizers of the activities of bidders; creating advantages for any of the trading participants, restricting access to trading, etc. (Article 17).

The conclusion of agreements providing for the transfer of rights of ownership or use in relation to state or municipal property (lease, trust management of property) can only be carried out based on the results of competitions or auctions for the right to conclude such agreements, with the exception of cases provided for by law (Article 17 1 ).

The conclusion of agreements with financial organizations for the provision of financial services (raising funds on deposits, opening and maintaining bank accounts, maintaining a register of securities owners, trust management of securities, non-state pension provision) must be carried out through an open competition or auction in accordance with the provisions of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

Violation of these rules is grounds for the court to declare the relevant transactions or trades invalid, including at the request of the antimonopoly authority;

7) illegally granted state or municipal preferences(vv. 20 and 21). Preferences are recognized as legal if they are provided in order to ensure livelihoods in the Far North, conduct fundamental research, protect the environment, develop culture, produce agricultural products, support small businesses carrying out priority activities, social protection population, in particular support for unemployed citizens.

It is also allowed to provide property or other objects of civil rights based on the results of auctions, assign state or municipal property to business entities with the right of economic management or operational management, transfer state or municipal property to individuals in order to eliminate the consequences of emergency situations or military actions, provide property or other objects of civil rights on the basis of federal law or a court decision that has entered into legal force.

If acts granting state or municipal preferences are adopted in violation of the Competition Law, they may be declared invalid in whole or in part by the court, and the property transferred under them may be subject to return to state or municipal ownership;

8) unfair competition, i.e. any actions of business entities (groups of persons) that are aimed at obtaining advantages in business activities are contrary to the law, business customs, the requirements of integrity, reasonableness and fairness and may cause losses to other business entities - competitors or damage their business reputation (Article 4 of the Competition Law). An approximate list of elements of unfair competition is given in Art. 14 of this Law:
- - dissemination of false, inaccurate or distorted information that may cause losses to a business entity or damage its business reputation (discredit, defamation);
- - misleading consumers regarding the nature, method and place of production, consumer properties, quality and quantity of the product or its manufacturers;
- - incorrect comparison by an economic entity of the goods produced or sold by it with the goods of other economic entities;
- - sale of goods with illegal use of the results of intellectual activity and equivalent means of individualization of a legal entity, its products, works, services (company name, trademark, etc.);
- - illegal receipt, use, disclosure of information constituting commercial, official and other secrets protected by law;
- - inappropriate advertising, i.e. dishonest, unreliable, unethical, deliberately false and other advertising that violates the statutory requirements for its content, time, place and method of distribution. Control in the field of advertising is entrusted to the antimonopoly authorities (Articles 2, 6, 33 of the Law “On Advertising”).

The legislation of foreign countries also prohibits unfair competition: Ch. 15 USC, Trade and Commerce Act of 1890, Federal Trade Commission Act of 1914; Art. 1382, 1383 FGC, Freedom of Price and Competition Ordinance No. 86-1243 of 1986; German Unfair Competition Law 1909; Swiss Federal Unfair Competition Act 1986; Japan Prohibition of Private Monopoly and Promotion of Fair Trade Act of 1947; Art. 2598-2601 Civil Code of Italy; UK Competition Act 1980

The legislation of most countries does not contain a definition of the concept of unfair competition, but operates with a list of specific types of competitive actions that are recognized as unfair. An exception is, for example, the Swiss Federal Law on Unfair Competition of 1986, which contains, along with a list of unfair competitive practices, a general definition of the concept of unfair competition - any conduct or commercial practice that is deceptive or otherwise contrary to good trade practices and has place in relations between competing entities or in relations between commercial entities and clients (Article 2).

Unfair competition under the laws of most foreign countries entails liability: civil (compensation for losses), administrative (fine), criminal (up to imprisonment).

See: Totyev K. Yu. Competition and monopolies. Legal aspects of regulation. M„ 1996. pp. 68-72.
See: Entrepreneurial (economic) law / ed. O. M. Oleinik.S. 481-498.
See letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 30, 1998 No. 32 “Review of the practice of resolving disputes related to the application of antimonopoly legislation.”
See Decree of the Government of the Russian Federation of December 19, 2007 No. 896.

Monopolistic activity– these are actions (inactions) of business entities that are contrary to antimonopoly legislation, aimed at preventing, limiting or eliminating competition.

This definition is common to commodity and financial markets.

The illegality of any offense lies in the violation of the norms of objective law and the subjective rights of other persons. Actions falling under monopolistic activity are considered illegal if they violate the regulations or prohibitions established by the antimonopoly legislation. Inaction is an offense if a person voluntarily does not fulfill the obligation assigned to him by the norm of antimonopoly legislation.

Monopolistic activity violates both private and public rights and interests. First of all, this offense infringes on the subjective rights of individuals - the rights of consumers and entrepreneurs in commodity and financial markets.

When qualifying certain monopolistic actions prohibited by antimonopoly legislation, losses can sometimes be difficult to determine. In this regard, the general definition of monopolistic activity does not contain any indication of losses as a consequence of this offense. To establish and prohibit monopolistic activities, it is not necessary to establish the existence of losses from specific entrepreneurs and consumers. At the same time, in order to apply a civil sanction to the offender in the form of compensation for losses, the establishment of the latter and the causal connection is mandatory. These elements of the offense They are also important when imposing criminal liability measures for monopolistic activities under particularly aggravating circumstances.

The subjects of this offense (offenders) are entrepreneurs - business entities and financial organizations, as well as a group of persons.

Types of monopolistic activities of business entities:

– individual behavior of a business entity in the form of abuse of its dominant position in the market;

– agreements (concerted actions) of business entities that limit competition. Unlawful activities of state authorities and local governments to restrict competition. State authorities, local government bodies and their officials are not recognized as subjects of monopoly (dominant position) and competition in the market, and therefore the law does not mention them when defining these concepts.

The illegal behavior of these bodies, aimed at preventing, limiting or eliminating competition, is socially dangerous due to the fact that these entities use public power for the purpose of unlawfully obtaining income or other privileges, violate the rights and legitimate interests of entrepreneurs, and interfere with fair competition.

Offenses of bodies are divided into individual acts and actions; agreements (concerted actions) limiting competition.

monopolistic activity - abuse by an economic entity, a group of persons of its dominant position, agreements or concerted actions prohibited by the antimonopoly law, as well as other actions (inaction) recognized as monopolistic activity;

systematic implementation of mono-activity - implementation by an economic entity of mono-activity, detected more than 2 times within 3 years;

Actions (inaction) of an economic entity occupying a dominant position are prohibited, the result of which is or may be the prevention, restriction, elimination of competition and infringement of the interests of other persons, including the following actions (inaction):

1) establishing and maintaining a monopolistically high or monopolistically low price for a product;

2) withdrawal of goods from circulation, if the result of such withdrawal was an increase in the price of the goods;

3) imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract (economically or technologically not justified)

4) economically or technologically unjustified reduction or cessation of production of a product, if there is a demand for this product or orders have been placed for its supply if it is possible to produce it profitably, and also if such a reduction or such cessation of production of the product is not expressly provided for by the contract.

5) economical or technologically unjustified refusal or evasion from concluding a contract with individual buyers if it is possible to produce or supply goods, and also if such refusal or evasion is not expressly provided for by the contract.

6) economically, technologically and otherwise unjustified establishment of different prices for the same product, unless otherwise established by the Federal Law;

7) setting by a financial organization an unreasonably high or unreasonably low price for a financial service;

8) creation of discriminatory conditions;

9) creating obstacles to access to the product market or exit from the product market for other economic entities;

10) violation of pricing procedures;

11) manipulation of prices on the wholesale and (or) retail markets for electrical energy (power).

An economic entity has the right to provide evidence that its actions (inaction) can be considered acceptable.

In order to prevent the creation of discriminatory conditions, rules for non-discriminatory access to commodity markets and (or) to goods produced or sold by natural monopolies, the regulation of whose activities is carried out in accordance with the Federal Law of August 17, 1995, may be established by federal law or a regulatory legal act of the Government of the Russian Federation. N 147-FZ "On Natural Monopolies", as well as to infrastructure facilities used by these subjects of natural monopolies directly to provide services in the areas of activity of natural monopolies.

The requirements of this article do not apply to actions to exercise exclusive rights to the results of intellectual activity and equivalent means of individualization of a legal entity, means of individualization of products, works or services.