Antimonopoly regulation and legislation in the Russian Federation. Antitrust Law

Antimonopoly legislation is the direction of government activity in economic activity.

The antimonopoly legislation of the Russian Federation is based on the Constitution of the Russian Federation, the Civil Code of the Russian Federation and consists of the Federal Law "On Protection of Competition", "On Competition and Restriction of Monopolistic Activity in Product Markets" and other federal laws.

According to the Federal Law "On Protection of Competition", the presence of a dominant position of an economic entity in a particular market in accordance with Russian law is not illegal. However, attempts by an entity that dominates the product market to maintain or strengthen its market power using certain methods that affect the general conditions of competition and restrict it, harming competitors, as well as other economic entities or individuals, are a violation of antimonopoly legislation and must suppressed and eliminated by the antimonopoly authorities.

A feature of the Russian economy is its significant dependence on the activities of monopolies in various sectors of the production of goods and services. This specificity is due to the continuity of the structure of economic relations that have developed in the Soviet Union. The development of the modern economic environment in Russia was initially made dependent on the raw materials, processing, logistics monopolies created during the Soviet industrialization.

Antimonopoly regulation, protection of competition in commodity markets is one of the most important functions of the state.

Despite the existing extensive research on the nature of competitive processes in the economy, there is no consensus among economists about the effectiveness of competition and its impact on economic development.

The establishment of antimonopoly policy in Russia took place simultaneously with the liberalization of the economy, privatization, and the formation of market relations.

The first attempt to create antimonopoly legislation in Russia was undertaken back in 1908. The Sherman Act in the United States was taken as a model. However, organizations of Russian businessmen met the draft law with hostility and managed to thwart its adoption.

The history of antimonopoly regulation began on March 22, 1991, after the adoption of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets", in which the main tasks of state competition policy were defined in the most concentrated form: promoting the formation of market relations based on the development of competition and entrepreneurship ; prevention, restriction and suppression of monopolistic activities and unfair competition; state control over compliance with antimonopoly legislation.

The application of the Law in practice has shown its incomplete adaptation to the real processes taking place in the economy of Russia in transition and constituting the main subject of antimonopoly regulation. That is why, during the period of its validity, the Law was amended eight times, while the previous concept remained unchanged, although all its articles were amended and supplemented to a greater or lesser extent.

One of the tools for conducting the state antimonopoly policy aimed at regulating the processes of economic concentration on product markets and the activities of large enterprises that own influential market segments is the maintenance of the Register of business entities with a share of more than 35% in the market for a certain product. The purpose of the Register is to prepare an information base on the largest subjects of a separate commodity market for state control over their compliance with antimonopoly legislation in the implementation of institutional transformations in the economy.

During the period of the antimonopoly policy in Russia, there were two different concepts for the formation and maintenance of the Register, which changed their economic and legal purpose depending on economic conditions.

The new edition of 26.07.2006 of the Law No. 948-1 "On Competition and Restriction of Monopolistic Activity in Commodity Markets" (adopted on 22.03.1991) proposed a different approach to the formation of the Register. The change in the name of this document - "The register of economic entities with a market share of a certain product of more than 35 percent" - indicates its information and reference purpose. The legal consequences for enterprises included in the Register are determined only under state control over the creation and reorganization of commercial enterprises and the acquisition of shares in the authorized capital. Accordingly, not only the name has changed, but also the form of the Registry's legitimacy.

Perhaps the most important of all antitrust policy measures for Russia were restrictive measures. They are provided for by the law "On Competition ..." and are applied by the antimonopoly authority to business entities that violate the antimonopoly legislation. These are bans on monopolistic activities and unfair competition, on the actions of authorities and management, which may adversely affect the development of competition.

Bans on monopolistic activity are subdivided into bans against agreements that restrict competition and bans on the abuse of dominant positions by enterprises. Such abuses are the most typical (over 60%) violation of antimonopoly legislation.

Also, the law prohibits setting monopoly high or monopoly low prices, withdrawing goods from circulation in order to create or maintain a deficit or increase the price, impose contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract, include discriminatory conditions in the contract that set the counterparty in an unequal position compared to other enterprises, prevent other enterprises from entering the market (or leaving it), encourage the counterparty to refuse to conclude contracts with individual buyers (customers), despite the fact that there is an opportunity to produce or supply the desired product.

In order for the importance of this prohibition to become fully understood, it is necessary to clarify what monopoly high and monopoly low prices are. A monopoly high price is a price set by an economic entity (manufacturer) that dominates the market for a given product in order to compensate for unreasonable costs caused by insufficient full use of production facilities and (or) to obtain additional profit by reducing the quality of the product.

Monopoly low price is the price of the purchased product, set by the buyer dominating the market for this product in order to obtain additional profit and (or) compensate for his unreasonable costs at the expense of the seller. That is, the price deliberately set by the seller dominating the market for a given product at a level that brings losses from the sale, in order to oust competitors from the market.

Now in Russia, monopoly high prices are more often practiced, and in countries with developed competition, monopoly low prices, sometimes even dumping ones. Russian monopoly manifests its anti-competitive behavior primarily in relations with consumers or suppliers, and not with competitors. But as competition develops, the likelihood of using monopoly low prices increases: powerful diversified companies, thanks to cross-subsidization due to the profitability of some sectors, can understate the prices of products of others and thereby block competitors. In this part, it is especially necessary to control financial and industrial groups.

Also, Russian antitrust law strives to prohibit the conclusion of agreements that restrict competition, and these include:

1) agreements preventing other enterprises from entering the market;

2) refusal to conclude contracts with certain sellers or buyers;

3) agreements on the division of the market according to the territorial principle or the range of products sold;

4) price agreements.

According to the Law "On Competition and Restriction of Monopolistic Activity in Commodity Markets", if an enterprise reaches a certain threshold in terms of the volume of operations, it must obtain the consent of the antimonopoly authority for its actions (preliminary control) or notify it about them (subsequent control).

Russian antitrust law does not permit actions or transactions that may result in the establishment or expansion of the market power of a commercial organization, if the negative consequences for competition are not compensated by an increase in its competitiveness in the domestic and international markets. Therefore, control does not interfere with the integration of Russian enterprises to compete with foreign firms.

But, at the same time, it is not uncommon for the creation, merger, acquisition or liquidation of commercial organizations and the acquisition of shares to take place in violation of antimonopoly legislation.

In general, we can say that the control activities of the antimonopoly agency are not yet effective enough. It does not involve line ministries in conducting competition policy in industries, does not have investigative powers (unlike, for example, the Japanese Fair Trade Commission), it is difficult for it to obtain the required information. The agreement between the Antimonopoly Service and the State Tax Service on the exchange of information and assistance to each other is practically not being implemented. Courts do not apply the article of the Criminal Code, according to which a person guilty of establishing monopoly restrictions on competition can be imprisoned for a term of 2 to 7 years. The article also does not work because entrepreneurs are not ready to file complaints and interact with law enforcement agencies, and the antimonopoly authority is not active in filing claims for such violations. In addition, it is not allowed to create ministries, state committees, etc. to monopolize the production or sale of goods, as well as to empower existing bodies with powers that can restrict competition. Therefore, decisions of the executive power and local government on the creation, reorganization and liquidation of enterprises or the provision of benefits must be coordinated with the antimonopoly department.

There is a lot of controversy about how monopolies are regulated, as consumers, monopolists, and regulatory commissions themselves strive to maximize profits. However, this is not the only reason for the disagreement, because in fact, the monopoly regulation system is far from perfect. Therefore, the methods of state regulation of monopolies are constantly being improved, this issue is one of the main in the search terms, and the public's interest in it will never fade away.

It should be noted that only part of the types of economic activities carried out in such industries as the gas industry, electric power, railway transport and communications, in fact, belong to a natural monopoly and should be subject to government regulation. Other types of economic activity can potentially function effectively in a competitive environment, but the creation of a competitive environment presupposes the need for adequate structural changes. For example, production in both the electric power industry and the gas industry, in contrast to the transportation and distribution of resources, is objectively not a natural monopoly. Ideally, structural changes in these industries to maximize the use of competitive market forces would limit the scope of government regulation. There are often cases of transferring costs from unregulated to regulated activities, which, on the one hand, enables enterprises to “reasonably” overcharge prices in unregulated markets, allowing them to eliminate competitors or unjustifiably increase their market share.

As for the antimonopoly legislation in Russia today, we can say that the experience of European states and the European system of antimonopoly regulation, which rather restricts monopolies rather than completely prohibits their activities, was generally accepted. The Federal Law No. 135 "On Protection of Competition" takes into account the specifics of the Russian economy and, along with the restriction of monopolies, also provides for measures to suppress state monopoly.

The economic policy of Russia is unstable - it is moving from administrative arbitrariness in managing production to the element of independence of economic units. But in the first case, an infringement of local interests is found, and in the second - inconsistency of work. The ideal solution is not to whom to give the right to decide, but in ensuring the proper direction of this activity, achieved through more careful economic and legal regulation. Appropriate legislative, primarily anti-monopoly, measures are needed that are adequate to the production base and economic relations. Effective antitrust regulation should be comprehensive, ensuring fair competition among manufacturers and sellers, while at the same time taking into account the importance of big business in basic industries for the development of the national economy.

Antitrust Law- a set of regulations aimed at limiting the freedom of entrepreneurial activity and the freedom of contract of economically influential companies. The most common restrictions affect the creation or other mechanisms for maintaining prices and dividing markets; large and actions that can significantly increase the seller's ability to influence the price. At the moment, antitrust laws exist in most countries of the world.

Antimonopoly legislation is a system of legal acts that ensure competitive conditions for market relations, establish rules for the behavior of participants in commodity markets, protect the rights of small and medium-sized businesses from economic entities that occupy a dominant position in the commodity market.

The first law to restrict monopoly in the market for goods was the Sherman Act of 1890, one of the main laws under US antitrust law, named after the author of the bill, Senator J. Sherman (Sherman Act). The law outlawed contracts, monopoly associations, and collusion that restrict free trade. The maximum fine in favor of the state levied on corporations for violating the law was initially $ 5,000, then was increased to $ 50,000 (1955) and $ 1 million (1974).

After World War II (1950s – 1960s), antitrust laws appeared in the Common Market countries, in Japan, and in almost all industrialized countries of the world. In some states, it is called antitrust (USA, Canada, Japan, in the USA it is also called antitrust) or anti-cartel (Germany, Austria, Switzerland), and in others (including in many EU member states) it is defined as legislation on combating restrictive business practices.

In the modern world, antimonopoly legislation and the antimonopoly policy pursued on its basis are one of the most important means of state regulation of the economy. The main objectives of the antitrust laws of most states are:

protection and promotion of competition;
control over economic entities that occupy a dominant position in the market;
control over the process of concentration of production and centralization of capital;
control over pricing;
assistance to small and medium-sized businesses and protection of their interests;
protection of consumer interests.

In some countries, antitrust laws include anti-unfair competition laws against unfair market competition. In a narrower sense, antitrust laws are directed against the clean and large, as well as to prevent “dishonest” acts that violate the norms of business communication.

According to supporters of antitrust laws, it protects the economic interests of consumers and promotes economic development. According to opponents, antitrust law is a system of violation of property rights and often or even usually leads to negative consequences for consumers and the economy as a whole.

Introduction ………………………………………………………………………… ... 3

1. Concept, basic principles of the antimonopoly policy of the Russian Federation …………… 5

1.1. The concept of competition and monopolistic activity …………… ..5

1.2. Types of monopolistic activities ………………………………… ..6

1.3. Objectives and Methods of Antimonopoly Regulation in Russia …………… .8

2. Antimonopoly legislation in Russia …………………………… ... 16

2.1. Stages of development of antimonopoly legislation ………………… 16

2.2. Regulatory framework for antimonopoly activities ...................... 18

2.3. Main provisions of antimonopoly legislation ...................... 27

3. Activities of the Federal Antimonopoly Service of the Russian Federation ……………… 31

4. Influence of antimonopoly legislation on the unity of the Russian market and economic development …………………………………………….… 37

5. Trends in the development of the regulatory framework of antimonopoly legislation in solving problems ……………………………………….… 40

6. State control over monopolistic activities in countries with developed market economies ……………………………… ..… ... 43

Conclusion ……………………………………………………………………… 50

List of used literature… .. ………………………………………… 54

INTRODUCTION

Without the adoption of firm and consistent measures against monopoly, it is impossible to hope for the success of economic reform and the transition to a market economy. In Russia, the process of creating state control to prevent unfair competition actually began from scratch, since the command-administrative system, which was present only recently in the management of the economy, inherently excluded the presence of free competition in economic activity.

The Russian economy inherited a high level of concentration of production in many sectors of the economy from the Soviet economy. In Russia, natural monopolies also have great market power, operating in the basic spheres of the economy - electricity and transport. Thus, RAO UES of Russia controls 98% of electricity consumers, RAO GAZPROM controls 94% of the domestic gas market, and the Ministry of Railways controls 77% of freight turnover. Antimonopoly regulation, combined with support for domestic entrepreneurship and the organization of consumer protection, is one of the essential conditions for the successful socio-economic development of Russia.

The creation and improvement of the legislative framework for the regulation of monopolistic processes and competition, the understanding by the Russian population of the need for economic reforms in this area is of great importance.

To conduct antimonopoly policy, the state creates antimonopoly services, the main task of which is to control monopoly trends in the country.

For the conduct of antitrust policy to win the confidence and support of the population, so that people know that they can turn to antitrust services with their problems, it is necessary to convince people that free competition is good for everyone.

In this course work we will consider the issue of the application of antimonopoly legislation and the impact of antimonopoly regulation on the unity of the Russian market and economic development.

The purpose of this work is to study and generalize the foreign experience of antimonopoly regulation, analyze the basic principles of antimonopoly regulation in Russia on the basis of the current economic situation and current regulations, study the antimonopoly legislation of the Russian Federation, consider the area of problems of antimonopoly legislation and possible ways to solve them; identification of sources of antitrust regulation problems; the main tendencies of changes in the antimonopoly legislation by the method of analysis of the existing normative acts, taking into account the peculiarities of the Russian economy.

Study of antimonopoly policy at the federal level;

Get acquainted with the history of the formation of antimonopoly legislation in Russia;

Get acquainted with the regulatory legal acts of antimonopoly activities;

Consider the types of violations of antimonopoly legislation on the example of enterprises;

Get acquainted with the activities of the antimonopoly authorities at the federal and regional levels;

Get acquainted with the implementation of state control over monopolistic activities in countries with developed market economies.

The subject of the research is the antimonopoly legislation of the Russian Federation

1. Concept, basic principles of the antimonopoly policy of the Russian Federation

1.1. The concept of competition and monopolistic activity

Monopoly (from the Greek. Monopolium - one sell or a single seller) means the exclusive right to carry out any activity (production, trade, fishing) belonging to one person, group of persons, organization or state, which allows you to impose your own interests and receive monopoly profits.

Monopoly finds its place in the market economy. Its existence can be judged by the signs of monopolistic behavior: by the destruction of market mechanisms (slowing down scientific and technological progress, maintaining high prices, decreasing quality and reducing the volume of production, etc.).

A monopoly can be the state, regions, central economic departments, ministries, of course, state and private enterprises, as well as individual entrepreneurs. Typically, monopoly is associated with large and largest enterprises or corporations.

The essential features of a monopoly are the subject's possession of property and monopoly power, the ability to dictate its own conditions, to influence the market equilibrium in an advantageous way for itself, to manipulate prices and production volumes.

Competition is a prerequisite for a market economy. It means the competitiveness of market participants, when their independent actions effectively limit the ability of each of them to unilaterally (monopoly) influence the general conditions for the circulation of goods in the relevant commodity market. The opposite of competition is monopolistic activity, which is the actions of market participants that contradict antimonopoly legislation and aimed at preventing, limiting or eliminating competition.

Competition is permitted by law and monopolistic activity is prohibited. Monopoly in the state economy is based on universal state property and the absence of a civilized market, i.e. total nationalization of the economy.

The negative consequences of state property monopoly (state monopoly) are;

1) at the level of society - the lack of economic freedom, the degeneration of the economic system;

2) at the industry level - the emergence of narrow departmental interests;

3) at the enterprise level - inflexibility, inefficiency of production;

4) at the level of an individual employee - alienation from property, management and from the results of one's own labor.

State monopoly causes enormous harm to the economy and the national economy as a whole.

The main ways to overcome monopoly are: the formation of a normally functioning market economy and a competitive environment in product markets, the development of small business, as well as the denationalization of property and the privatization of enterprises. In short, this includes all measures to demonopolize the economy.

Antimonopoly legislation is aimed at maintaining competition and limiting monopolistic activities.

1.2. Types of monopolistic activities

The normal development of entrepreneurship is hindered by the monopolistic activity of entrepreneurs (business entities) as a type of offense. According to Article 4 of the Law on Competition, monopolistic activities are actions (inaction) of economic entities that contradict antimonopoly legislation and are aimed at preventing, limiting or eliminating competition.

The main types of monopolistic activities are:

1. Abuse by an economic entity of a dominant position in the market (Article 5 of the Law on Competition). The dominant position of an economic entity means its dominance in the commodity market for similar goods, if its share of the commodity is 65% or more (Article 4 of the Competition Law as amended in 1998). The position of an economic entity, whose share in the market for a particular product does not exceed 35%, cannot be recognized as dominant.

The abuse of dominant market position by business entities is expressed in the fact that antitrust laws prohibit them from performing such actions as: withdrawal of goods from circulation to create a deficit in the market; imposing on the counterparty the terms of the contract that are unfavorable for him; inclusion in the contract of discriminatory conditions that put the counterparty in an unequal position in comparison with other economic entities; consent to conclude an agreement only subject to the inclusion of such goods in which the counterparty is not interested (Article 5 of the Competition Law);

2. Coordinated actions of business entities that restrict competition (Article 6 of the Law on Competition). It is prohibited and recognized as invalid in full or in part in any form of agreements (concerted actions) of competing economic entities with a total market share of a certain product exceeding 35%, if such agreements have or may result in restricting competition. Such agreements are aimed at:

establishment (maintenance) of prices (tariffs), discounts, allowances (shares), markups;

increase, decrease or maintenance of prices at auctions and tenders;

division of the market by territory, volume of sales or purchases, according to the circle of sellers or buyers.

3. Acts and actions of authorities and administration aimed at restricting competition (Article 7 of the Law on Competition);

4. Agreements (concerted actions of the authorities and management, restricting competition (Art. 8 of the Law on Competition);

5. Participation of officials of state authorities and state administration in entrepreneurial activity. According to Art. 9 of the Law, these officials are prohibited from engaging in independent entrepreneurial activities; own an enterprise; independently or through a representative to vote by means of their shares, contributions, shares of shares when adopted by the general meeting of a business partnership and company; hold positions in the management bodies of an economic entity. These officials are entitled to engage in scientific and teaching activities.

1.3. Objectives and methods of antitrust regulation in Russia

Demonopolization of the economy is overcoming monopolistic activities and promoting the formation of market relations based on the development of competition and entrepreneurship.

Antimonopoly regulation is a set of economic, administrative and legislative measures implemented by the state and aimed at ensuring conditions for market competition and preventing excessive market monopolization that threatens the normal functioning of the market mechanism. Antimonopoly regulation includes regulation of the level of concentration and monopolization of production, strategies and tactics of enterprises, foreign economic activity, price and tax regulation.

Antimonopoly policy of the state is always based on antimonopoly legislation.

Antimonopoly legislation is a complex and ramified network of laws, court decisions and legal norms, a set of legal acts in countries with a market economy aimed at maintaining a competitive environment, countering monopoly and unfair competition. All these measures are aimed at maintaining a competitive environment, countering monopoly and unfair competition, to regulate the actions of firms and corporations in the market for goods and services, in the capital market, cutting off those of them that are recognized as unfair, of poor quality in relation to the rights of producers and consumers, and also simply harmful to society.

The complex of government measures constituting antimonopoly policy is based on a general conceptual concept, according to which the highest welfare of citizens is achieved when they have the opportunity to freely exchange their goods and services in a competitive market. The competitive market, therefore, acts as a universal regulator of social production and its proportions. At the same time, the question of what to produce and in what quantity is objectively decided by the consumer himself, presenting the demand on the market for certain types of goods and services.

The development and adoption of antimonopoly legislation is one of the most important means of state regulation of the economy. In the modern period, the main feature of this legislation is that it is aimed at protecting the so-called oligopoly of the market mechanism.

There are two main forms of fighting monopolies:

1) prevention of the creation of monopolies;

2) limitation of the use of monopoly power.

The experience of developed countries shows that the antitrust policy turned out to be ineffective and influenced only the forms of centralization of capital, but it did not stop the process of monopolization itself. Counteraction to the monopolization of the economy is expressed in the form of bans on the conduct of production and commercial activities, in the downsizing of firms, their reorganization, division, up to liquidation. Despite the differences in antitrust laws from different countries, they have common features and goals. These include: encouraging competition; control over dominant firms in the market and over the process of mergers and acquisitions of companies; protection of consumer interests; assistance to the development of small and medium-sized businesses.

The actions of entities aimed at the territorial division of markets, boycotting competitors, attaching the buyer to certain sources of supply, establishing agreed prices and discounts, agreeing production quotas in order to manipulate the exchange and the nature of the offer, as well as the appointment of single directors of competing firms are recognized as illegal.

In the countries of Eastern Europe, the problem of antitrust regulation has arisen relatively recently. It should be noted that the monopolies here were created artificially, through the concentration of production, which led to the formation of giant enterprises and associations. In the post-Soviet countries, antimonopoly policy was initially aimed at overcoming "command-and-control monopoly", i.e. to change the type of economic systems.

Summarizing what has been said, we note that free competition led to the concentration of production, which led not to the emergence, but to the domination of market monopolies. The most common types of them are pure, or absolute, natural and artificial, industrial and organizational monopolies. The classic organizational forms of monopolies are cartels, syndicates, trusts, concerns, which still exist in a modernized form.

In the course of implementing antimonopoly measures, the following main objectives are pursued:

1. Ensuring the unity of the economic space on the territory
Russian Federation

2. Ensuring "transparency" of the processes associated with the creation, merger and acquisition of commercial organizations, the acquisition of large blocks of shares, fixed production assets and intangible assets, as well as rights that make it possible to determine the conditions for the activities of enterprises occupying a dominant position in the market.
3. Reducing barriers to entry into commodity markets
4. Creation of effective legal mechanisms that ensure the observance of the prohibition on engaging in entrepreneurial activity by representatives of government bodies, including through the use of state and municipal unitary enterprises as tools for the authorities to combine economic and power powers.
5. Intensification of work on the prevention and suppression of unfair competition in product markets.

Achievement of the set goals is realized through the application of methods prevailing in world practice, the main of which are the following: the use of restrictive measures, control over the strengthening of economic concentration, a ban on unfair competition, bans on actions of authorities and management that may adversely affect competition, the use of state register.

Restrictive measures. They are applied by the antimonopoly authority to business entities that violate the antimonopoly legislation.
These are bans on monopolistic activities and unfair competition, on the actions of authorities and management, which may adversely affect the development of competition.

Quite often there are such violations as the imposition of unfavorable terms of the contract on the counterparty, non-observance of the pricing procedure, concerted actions of enterprises aimed at restricting competition. Monitoring of more than 200 prices showed that over a third of enterprises with a dominant position in the market overcharge prices for goods and services.

The law prohibits setting monopoly high or monopoly low prices, withdrawing goods from circulation in order to create or maintain a deficit or increase the price, impose contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract, include in the contract discriminatory terms that set the counterparty to an unequal position in comparison with other enterprises, to prevent other enterprises from entering the market (or leaving it), to induce the counterparty to refuse to conclude contracts with individual buyers
(by customers), despite the fact that it is possible to produce or deliver the desired product.

The ban on the establishment of monopoly prices is the most stable, although there are many problems here as well. In particular, the "Temporary guidelines for identifying monopoly prices" dated April 21, 1994, propose to simultaneously use the concept of limiting profits and the concept of market comparison. The application of the first concept is complicated by the fact that production costs must be set taking into account the fact that production capacity may be exhausted. But with a general decline in production in Russia, this is unrealistic. It is also unrealistic to find out the actual cost, profit and profitability of an enterprise in the conditions of the domination of barter and "black cash". Therefore, the concept of comparison of markets turns out to be preferable, within the framework of which the antimonopoly authority does not need to check the production indicators of a monopolist enterprise, it is enough to identify monopoly high or monopoly low prices on the basis of external factors.

Now in Russia, monopoly high prices are more often practiced, and in countries with developed competition, monopoly low prices, sometimes even dumping ones.
Russian monopoly manifests its anti-competitive behavior primarily in relations with consumers or suppliers, and not with competitors. But as competition develops, the likelihood of using monopoly low prices increases: powerful diversified companies, thanks to cross-subsidization due to the profitability of some sectors, can understate the prices of products of others and thereby block competitors. In this part, it is especially necessary to control financial and industrial groups.

The register as a tool for antitrust control. Based on the analysis of the state of the commodity market and the share of enterprises on it (more or less 35%), they are included or excluded from the state register.
This is done by the MAP, if we are talking about the Russian market as a whole, or its territorial departments in the case of regional markets. The register is compiled in order to have an information base on the largest market entities and to monitor their compliance with antimonopoly legislation.
The register must include enterprises that are the only manufacturers in Russia of certain types of products. It includes, for example, the Bryansk Machine-Building Plant (insulated cars),
Kalugaputmash (rail welding machines, stacking cranes), Novosibirsk Metallurgical Plant (sheet tool cold-rolled steel), Magnitogorsk Metallurgical Plant (high-quality high-quality strips), Ufaneftekhim (ethylene-propylene rubbers), Volzhskoe Khimvolokno (threads and polyurethane textile).

The number of enterprises included in the register depends on the boundaries of the product market in which their share is determined. The more detailed the nomenclature of products is considered, the more enterprises can be included in the register. Antimonopoly authorities identify enterprises that have a significant share only in the production of the most important for the economy, structure-forming and socially significant products.
But the inclusion of an enterprise in the register does not mean that it is a monopolist and that restrictive measures should be applied to it, say, in terms of prices, because the very existence of large enterprises does not mean that they are abusing their dominant position. Moreover, their monopolistic activity is impossible if the market has limited effective demand or resources for the development of production. Monopoly behavior of an enterprise and measures to suppress abuse of a dominant position are strictly regulated by Articles 5-8 of the Law on Competition, and the broad use of the term "monopolist" is not allowed.

All commodity markets can, with reservations, be divided into three types: with developed competition - markets for the main types of food, grain, vegetable oil, as well as markets for transport, construction and machine-building complexes; oligopolistic with a small number of producers - markets for individual durable goods (cars, computers, household appliances). They are especially difficult to demonopolize, because in the formal absence of domination by any of the producers, favorable opportunities are created for monopoly collusion, which is quite difficult to legally prove; monopolized, including natural monopoly markets.

The structure of commodity markets, the nature and level of monopolization of the economy are changing as a result of privatization, price liberalization, opening of the domestic market to international competition, bankruptcy and reorganization of unprofitable enterprises, regulation of natural monopolies.

In Russia, natural monopolies include, first of all, RAO UES
Russia ”,“ Gazprom ”and the Ministry of Railways. Their fate provokes heated debate. The measures outlined by the Decree of the President of the Russian Federation "On the Basic Provisions of Structural Reform in the Spheres of Natural Monopolies" dated April 28, 1997, No. 426, are perceived ambiguously.

Although the structural reform in this area is aimed at increasing the economic efficiency of natural monopolies, the rational use of their production potential, the formation of competitive (market) relations, opponents of demonopolization believe that the implementation of the plans will require costs that will exceed the future effect. Nevertheless, the reform of natural monopolies is one of the main tasks of the restructuring of the Russian economy.

The application of methods of antimonopoly regulation cannot be carried out without an appropriate legislative framework.

2. Antimonopoly legislation in Russia

2.1. Stages of development of antimonopoly legislation

The current Russian legislation on competition protection has gone through several stages in its development. The transition of the Russian state to market relations demanded adequate legal measures, therefore the first stage the development of domestic antimonopoly legislation is rightfully considered the moment of the adoption of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets".

In July 1991, almost simultaneously with the adoption of the aforementioned Law, the State Committee of the Russian Federation for Antimonopoly Policy and Support of New Economic Structures was created, later - the State Antimonopoly Committee, in 2003 - the Ministry for Antimonopoly Policy and Support of Entrepreneurship, transformed into the Federal Antimonopoly Service of the Russian Federation (FAS Russia). The competence of these antimonopoly authorities was directly determined by the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets".

The Constitution of the Russian Federation, adopted by a popular vote in the same year, guaranteed the unity of the economic space, free movement of goods, services and financial resources, and support for competition. Thus, in the normative legal act of the highest legal force, the legal principles in the regulation of competition were fixed, the legal foundation was laid for the formation of a civilized market. In addition, the fairly quickly accumulated experience of considering cases of violations of antimonopoly legislation showed that the current Competition Law of 1991 was not fully adapted to the economic processes in Russia, and already in 1993 it became obvious that it needed to be substantially updated and supplemented. From this moment began second phase development of the antimonopoly legislation of the Russian Federation - the stage of formation of the constitutional foundations of antimonopoly legislation.

Third the stage in the development of domestic antimonopoly legislation began in 1994 in connection with the adoption of the new Civil Code of the Russian Federation. So, part 2, paragraph 1 of Art. 10 of the Civil Code of the Russian Federation does not allow the use of civil rights in order to restrict competition, as well as abuse of a dominant position in the market. Changes in constitutional and civil legislation necessitated further amendments to the 1991 Competition Law.

Fourth stage - the creation of new directions of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets", namely, price and advertising. Price regulation of the activities of economic entities dominating the market, which is currently implemented mainly within the framework of regulation of the activities of natural monopolies on the basis of the Federal Law of 17.08.1995 N 147-FZ "On Natural Monopolies", as well as special laws (for example, the Federal Law "On State Regulation of Tariffs for Electric and Heat Energy"). In order to protect against unfair competition in the field of advertising, to prevent and suppress inappropriate advertising, the Federal Law "On Advertising" was adopted in 1995. Currently, the Federal Law of 13.03.2006 N 38-FZ "On Advertising" is in force.

The fifth stage in the development of antimonopoly legislation is the formation of legislation on the protection of competition in the financial services market (banking, insurance and others related to the funds of legal entities and individuals).

Significant amendments to the 1991 Competition Law were introduced in 2002 and largely removed small and medium-sized businesses from the care of officials.

At the present stage, the development of antimonopoly legislation is crowned by Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" 1
Antimonopoly legislation in Russia.

2.2. Antimonopoly regulatory framework

The Law "On Competition and Restriction of Monopolistic Activity in Commodity Markets" was the basis for the formation of antimonopoly legislation in the Russian Federation, the preparation and adoption of relevant regulatory documents.

These documents include the Rules for Considering Cases of Violation of Antimonopoly Legislation (approved by order of the State Committee on Administrative Offenses of Russia No. 53 dated May 12, 1994), the Law on Supplementing the Criminal Code of the RSFSR and the Code of the RSFSR on Administrative Offenses.

A separate block is made up of acts on the State Register of enterprises-monopolists and on the special regulation of their activities. The legal foundations of antimonopoly are contained in the Laws on Enterprises and Entrepreneurship, on the Arbitration Court, the Arbitration Process, in the normative documents governing the privatization process.

To define a monopolist enterprise, it is important to establish not only its market share (the concepts of "an enterprise occupying a dominant position in the market" and "an enterprise holding a monopoly position in the market" are used in legislation as synonyms), but also to identify the presence of signs that characterize behavior entrepreneur as a monopolist.

The SCAP of Russia, in accordance with the right provided by the Law, to establish the maximum value of the share, the achievement of which allows the position of the enterprise to be considered dominant, has determined two conditions that allow characterizing the position of an economic entity as dominant: its market share and the ability to restrict competition.

The inclusion of an enterprise in the state Register of associations and enterprises-monopolists means the recognition of the enterprise as a monopolist. The compilation and approval of the State Register is entrusted to the SCAP of Russia.

When compiling the register, only one of the characteristics was used - market share, while the concept of "dominant position" requires the establishment in each case of the presence of some characteristics that characterize the position of the enterprise as dominant.

The procedure for the formation of the State Register, the types of Registers, the procedure for exclusion from the Register are determined by orders of the SCAP RF No. 60 of October 10, 1991 and No. 45 of February 20, 1992. mass media ("Economic newspaper", "Financial newspaper", the journal "Legislation and Economics").

The SCAP of Russia provided the formation of regional registers to its territorial offices. Inclusion in the Register depends on the geographical market in which the company has a dominant position and does not depend on the form of ownership. The register contains three sections - consumer goods, services and products for industrial and technical purposes.

Inclusion and exclusion from the Register of enterprises recognized as monopolists, constant control over prices and production is carried out by the SCAP of Russia, the Committee on Prices.

The dominant position of an economic entity causes other legal consequences: classifying property as federal property, limiting and specifics of privatization, etc. In this regard, a joint normative act was adopted "On the Procedure for Interaction of the State Property Committee of Russia, Property Management Committees and State Antimonopoly Bodies of Russia in the Process of Privatization. state enterprises and the creation of holding companies "(Letter of the State Property Committee of Russia and the State Property Committee of the Russian Federation dated 30.04. - 05.05.93 No. ACh4-19 / 3009 -ЛБ / 1869).

The procedure for excluding associations and enterprises from the Register of Monopolists assumes that they were included in the Register lawfully. In practice, however, it turns out that the Register includes enterprises whose market share is below 35%, or there is no second sign of the dominant position of an enterprise - the ability to restrict competition. Therefore, many enterprises dispute the correctness of inclusion in the Register. The legislation provides that in this case the enterprise has the right to apply to the arbitration court.

The inclusion of an enterprise in the State Register causes the application of special regulation of activities to them: the restoration of existing economic ties, the introduction of compulsory distribution of products, state regulation of prices and a number of other tough measures, up to the reorganization of enterprises that abuse their monopoly position. The procedure for applying these measures was originally determined by the Decree of the President of the Russian Federation of February 20, 1992 "On Measures to Stabilize the Work of the Industry of the Russian Federation in 1992". He received further details in the decree of the Government of the Russian Federation of February 27, 1992 No. 132, which entrusted the organization of measures for special regulation of the economic activities of monopolist enterprises to the Government Commission for the Operational Regulation of Resource Supply. This Commission has been given a number of powers: making proposals to the SCAP for inclusion in the Register and on exclusion from it, regulation of product supplies. The Commission has the right to send orders to suppliers and buyers on the mandatory supply of products to the state reserve, send them documents for the supply of products. Prescriptions and documents are the basis for the conclusion of contracts, and in case of refusal of the supplier or his evasion from the conclusion of the contract to apply to the arbitration court with a statement of coercion to conclude a contract.

1 Order of the SCAP of Russia dated May 12, 1994 No. 53 approved the rules for considering cases of violations of antimonopoly legislation, developed in accordance with clause Zet. 27 of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets" and governing the procedure and terms for considering cases on violations of antimonopoly legislation and making decisions on them.

For monopoly enterprises included in the Register, the declaration of prices for products and goods is provided, as well as state regulation of prices, carried out by the Pricing Committee under the Ministry of Economy of Russia, established in the Regulations approved on December 29, 1991 by the Ministry of Economy and Finance of the Russian Federation.

A number of normative acts provide for measures related to the demonopolization of economic structures: the separation of associations, concerns, and other associations of enterprises that occupy a dominant position in the commodity markets and violate antimonopoly legislation, as well as the creation of independent enterprises with the right of a legal entity by separating structural units from the existing enterprises and other subdivision

Measures to demonopolize the economy are closely related to the privatization of state and municipal enterprises, creating the necessary conditions for its implementation. This is the aim of the Decrees of the President of Russia of November 25 and 29, 1991 on the commercialization of trade, public catering and consumer services.

Instruction "On the Procedure for Control over the Acquisition of Units, Participatory Interests of Partnerships and Common Registered Shares of Joint Stock Companies and the Procedure for Recognizing Persons Controlling Each Other's Property" the investor acquires 35 or more percent of shares, shares and participatory interests in the authorized capital of the issuer or shares that provide more than 50 percent of the votes of shareholders when they are placed among the founders of a joint-stock company, with an increase in the size of the initial authorized capital by issuing shares or increasing shares, participation interests, with circulation of shares between investors.

Persons controlling each other's property are recognized as: persons holding more than 25% of shares, shares or participation interests, a person holding shares providing more than 50% of the votes of shareholders of another legal entity, or the presence of at least 1/4 of the same legal entities in the elected governing bodies of various legal entities.

Control over the acquisition by an investor of 35 or more percent of shares, shares and participation interests is carried out by the State Committee for Civil Aviation of the Russian Federation or its territorial departments (depending on the size of the authorized capital of an economic entity).

Consent to the acquisition of the declared volumes of shares, shares or participation interests is given if their acquisition does not lead the issuer and the investor, controlling each other's property, in aggregate to a dominant position in the market for a certain product (in accordance with the requirements set forth in Article 17 of the Law RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets").

The aggregate share of the issuer and the investor in the market for a particular product is calculated as the sum of their individual shares, as well as the shares of other legal entities that control each other's property, and (or) over the property of one of which the investor exercises direct control. Determination of the share of the issuer and the investor in the commodity markets is carried out in accordance with the procedure determined by the SCAP of Russia in determining the boundaries of commodity markets.

The lack of consent of the SCAP of Russia or its territorial administration for the acquisition of 35 or more percent of shares, stakes or participatory interests is the basis for invalidating the transaction.

During the privatization of state-owned enterprises and the creation of holding structures, the SCAP of Russia and its territorial bodies exercise control over the dominant position of the enterprise in the local or federal market for goods, works and services, as well as when creating an independent enterprise (enterprises) by separating a separate subdivision from the existing enterprise ( divisions), which occupies a dominant position in the market (the share of products exceeds 35% in the federal or local market of goods, works, services). The basis for this is the Letter of the State Property Committee and the State Property Committee of Russia dated 04.30.-05.93 No. ACh-19/3009-LB / 1869 "On the Procedure for Interaction of the State Property Committee of Russia, Property Management Committees and State Antimonopoly Bodies of Russia in the Process of Privatizing State Enterprises and Establishing Holding Structures" ...

Control is carried out by the approval and issuance by the antimonopoly authorities of a conclusion on privatization, which is sent to the State Property Committee of Russia or its territorial committee. In the conclusion, proposals may be made on the use of the privatization method, reorganization of the enterprise, the inclusion of certain conditions in the privatization plan of the enterprise, in the charter of the joint-stock company being created, or in additional conditions for the sale of enterprises at a commercial or investment competition.

When a holding company is created on the basis of a large business structure, subdivisions (subdivisions) are separated from the structure of the corresponding enterprise as legally independent (subsidiary) enterprises. The SCAP controls the reflection in the constituent documents of the presence of controlling stakes in subsidiaries in the authorized capital of the holding company, as well as the compliance of the documents of the holding company with the requirements of the interim regulation on holding companies and the Law on Competition and Restriction of Monopolistic Activities in the Commodity Markets.

This Law quite clearly delineates the powers of the Antimonopoly Committee and its territorial departments and judicial bodies (executive and judicial authorities). Thus, the SCAP does not have the right to make decisions on the termination and amendment of contracts (agreements), on their recognition, as well as unlawful acts of the authorities or administration, invalid, to recover damages and fines. This is the prerogative of the judiciary (arbitration and general courts).

The Antimonopoly Committee or territorial bodies, in case of non-fulfillment of the order, non-payment of the fine, must apply to the arbitration or general court with applications for recognizing the agreement or act as invalid and with other requirements. To implement the Law of the Russian Federation "On Protection of Consumer Rights", the SCAP of Russia is entrusted with the functions of control over violations of legislation (Order of the SCAP of the Russian Federation of August 24, 1992, No. 185). In particular, the Committee should monitor and suppress monopolistic activities of economic entities and unfair competition in the market of consumer goods, works and services by sending instructions to manufacturers (sellers, performers) to terminate and bring claims against manufacturers and sellers in general and arbitration courts, as well as performers of works and services in case of violation of consumer rights.

To implement these tasks, subdivisions for the protection of consumer rights and commissions for the consideration of cases of violations are created within the territorial administrations. In the Order of the SCAP of Russia on the termination of violations of consumer rights, the deadline and specific actions that the contractor (manufacturer, seller) must take to eliminate violations of consumer rights are indicated. In case of evasion or untimely execution of the order of the SCAP RF initiates a case for the imposition of a fine. The regulation on the procedure for imposing fines on business entities for evasion or untimely fulfillment of the orders of the SCAP of Russia (territorial departments) on the termination of violations of consumer rights was approved by order of the SCAP dated April 23, 1993 No. 51.

By order of the State Committee of the Russian Federation for Antimonopoly Policy and Support for New Economic Structures No. 83 dated July 14, 1994, the Regulation on the Procedure for Considering Cases of Violations of the Principles of Fair Competition and the Rights of Consumers to Reliable Information was approved. When advertising the services of banks, financial, insurance and investment enterprises, organizations, citizens-entrepreneurs, joint-stock companies, as well as other legal entities that attract funds from citizens or implement their financial programs in accordance with this order, it is prescribed:

Indicate the date and number of registration of the issue of the advertised securities, the place of their registration and the place where you can familiarize yourself with the terms of the issue;

Do not allow the announcement of guarantees, promises or offers about the future efficiency (profitability) of their activities;

Not promise to carry out work, provide services, provide goods, if they are not actually carried out (not produced) on the day of advertising;

In the presence of the listed violations, the relevant commission makes a decision that is subject to mandatory review by the advertiser and the licensing authority.

An advertiser whose advertising is recognized as unfair is obliged to withdraw its advertising from distribution within three days from the end of the period for consideration of the decision and to inform the SCAP of Russia (territorial administration) and the body that carried out the licensing of the advertiser about this. Otherwise, the license issued to the advertiser is suspended.

When considering cases, the SCAP of Russia and its territorial departments are guided by the Law of the RSFSR of March 22, 1991 "On Competition and Restriction of Monopolistic Activities in Commodity Markets", Presidential Decree No. 1183 of June 10, 1994, Regulations on the SCAP of Russia, approved by the Presidential Decree RF dated August 24, 1992 No. 915, provisions on territorial departments of the SCAP of Russia, Rules for the consideration of cases on violations of antimonopoly legislation, approved by order of the SCAP of Russia dated May 12, 1994, № 53.

The basis for the consideration of the case is the identification of the facts of unfair advertising; failure of advertisers to comply with the following obligations:

Indicate the actual size of dividends paid on ordinary registered shares during the last financial year;

Indicate real interest paid on various types of deposits during the last financial year, broken down by months (quarters), if payments were made monthly (quarterly).

2.3. The main provisions of the antitrust law

The heart of the Russian antimonopoly legislation is the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets" dated March 22, 1991 (hereinafter - the Law). Monopolistic activities, according to Art. 4 of the Law, are actions (inaction) of business entities or federal executive bodies, executive bodies of the constituent entities of the Russian Federation and local government bodies that contradict the antimonopoly legislation, aimed at preventing, limiting or eliminating competition.
Section II of the Law is devoted to the forms of monopolistic activity. It consists of five articles providing for the regulation of abuse of a dominant position in the market, vertical and horizontal (cartel) monopolistic agreements, the activities of executive authorities and local governments that restrict competition, as well as the inadmissibility of participation in entrepreneurial activities of officials of public authorities and government.

In clause 1 of Art. 5 of the Law enshrines a general prohibition of abuse by an economic entity (group of persons) of a dominant position in the market. This prohibition applies to actions that have or may result in restricting competition and (or) infringing on the interests of other business entities or individuals. The dominant position is recognized as the position of an economic entity, whose share in the market for a certain product (i.e., having no substitute or interchangeable goods) is 65% or more, except for those cases when the economic entity proves that, despite exceeding the specified value, its position the market is not dominant.

The approximate forms of manifestation of abuse of a dominant position, specified in Art. 5 of the Competition Law are as follows:

Withdrawal of goods from circulation, the purpose or result of which is to create or maintain a deficit in the market or increase prices;
- imposing on the counterparty the terms of the contract that are not beneficial to him or not related to the subject of the contract (unreasonable requirements for the transfer of financial resources, other property, property rights, labor force of the counterparty, etc.);

Inclusion in the contract of discriminatory conditions that put the counterparty in an unequal position in comparison with other economic entities;

Consent to conclude an agreement only subject to the introduction of provisions concerning goods in which the counterparty (consumer) is not interested;
- creating obstacles to market access (exit from the market) for other economic entities;

Violations of the pricing procedure established by regulatory enactments;
- the establishment of monopoly high (low) prices;
- reduction or termination of production of goods for which there is a demand or orders from consumers in the presence of a break-even possibility of their production;
- unjustified refusal to conclude an agreement with individual buyers (customers) if the production or delivery of the relevant product is possible.

According to Art. 6 of the Law, anticompetitive agreements (concerted actions) are the most dangerous and common form of monopolistic activity in a market economy.
Paragraph 1 of this article concerns the so-called horizontal (cartel) agreements, i.e. agreements between business entities of the same level. Thus, it is prohibited and recognized as invalid in full or in part in any form of agreements (concerted actions) of competing economic entities (potential competitors) with a total market share of a certain product exceeding 35%, if such agreements may result in restriction of competition. ...

Clause 2 of Art. 6 of the Law is devoted to vertical anticompetitive collusion. Thus, agreements (concerted actions) reached in any form of non-competing economic entities are prohibited, one of which occupies a dominant position, and the other is its supplier or buyer (customer), if such agreements (concerted actions) have or may result in restriction of competition ...
Articles 7 and 8 of the Law are directed against monopolistic activities in the field of economic management during the period of transition from a command-administrative system to market relations. It should be noted that these provisions are not inherent in the legislation of industrialized countries; they are more typical of countries with economies in transition.
According to paragraph 1 of Art. 7 of the Law, federal executive bodies, executive bodies of the constituent entities of the Russian Federation and local self-government bodies are prohibited from adopting acts and (or) taking actions that restrict the independence of economic entities, create discriminatory or, on the contrary, favorable conditions for the activities of individual economic entities, if such acts or actions have or may result in restricting competition and (or) infringing on the interests of business entities or citizens.
Various manifestations of anticompetitive consequences are possible during the merger, creation, and affiliation of commercial organizations. Articles 17 and 18 of the Law regulate the control of the following types of economic concentration: 1) creation, merger and acquisition of associations of commercial organizations, as well as commercial organizations themselves; 2) the acquisition of certain blocks of shares (deposits, stakes) in the authorized (pooled) capital of economic entities; 3) liquidation and separation (separation) of state and municipal unitary enterprises (if this leads to the emergence of an economic entity, whose share in the relevant product market exceeds 35%); 4) the acquisition or use by one business entity of fixed production assets and intangible assets of another business entity; 5) the acquisition by any person of the rights allowing to determine the conditions for the conduct by an economic entity of its entrepreneurial activity; 6) interweaving directorates.

A prerequisite for applying to the antimonopoly authorities for obtaining consent to the creation, reorganization and liquidation of commercial organizations is a certain total value of the assets of the founders, reorganized and liquidated enterprises (more than 100,000 minimum wages).

3. Activities of the Federal Antimonopoly Service RF

The law establishes the forms of unfair competition:

Dissemination of false, inaccurate or distorted information that can cause loss to another business entity or damage its business reputation - misleading consumers about the nature, method and place of manufacture of consumer properties, quality of goods;

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, individualization of products, performance of works, services;

Obtaining, using, disclosing scientific, technical, industrial or trade information, including commercial secrets, without the consent of their owner (Article 10 of the Competition Law).

The state policy to promote product markets and competition, to prevent, restrict and suppress monopolistic activities and unfair competition is carried out by the federal antimonopoly body - the State Antimonopoly Committee of the Russian Federation (since 1998 - the Ministry of Antimonopoly Policy).

The federal antimonopoly body is part of the structure of federal executive bodies, formed in the manner prescribed by
The Constitution of the Russian Federation and the Federal Constitutional Law
"On the Government of the Russian Federation".

The territorial bodies of the federal antimonopoly body are independent not only organizationally and structurally, but also financially, since they are financed from the federal budget.

The law does not provide for any restrictions on the number, structure and location of territorial bodies of the federal antimonopoly body, however, the practice of their formation in accordance with the administrative-territorial division has become traditional.
Russian Federation.

The federal antimonopoly body creates its own territorial bodies. The powers of the antimonopoly authorities follow from their tasks and functions (Article 12 of the Competition Law).

In order to promote the development of product markets, competition, support for entrepreneurship and demonopolization, the federal antimonopoly body has the right to send recommendations to the relevant executive authorities and management:

1) on the provision of preferential loans, as well as on the reduction of taxes or exemption from them for economic entities entering the market for a certain product for the first time;

2) on changing the scope of free, regulated and fixed prices;

3) on the creation and development of parallel structures in the spheres of production and circulation;

4) on financing measures to expand the production of goods in order to eliminate the dominant position of certain economic entities;

5) on the attraction of foreign investment, the creation of organizations with foreign investment and free economic zones;

6) on the licensing of export-import operations and changes in customs tariffs.

The federal antimonopoly body is entrusted with state control over:

1) the creation, merger and acquisition of commercial organizations (unions or associations);

2) merger and acquisition of commercial organizations, if the amount of their assets according to the last balance sheet exceeds 100 thousand minimum wages;

3) liquidation and separation (separation) of state and municipal unitary enterprises, the size of assets of which exceeds 50 thousand minimum wages, if this leads to the emergence of an economic entity whose market share will exceed 35% (clause 1, article 17 Law).

In addition to the above, the functions of state control are entrusted to the federal antimonopoly bodies - this is control over compliance with the legislation in the implementation of certain business transactions by business entities (clause 1, article 18 of the Law). This control is expressed in the fact that, with the prior consent of the federal antimonopoly body, on the basis of a petition of a legal entity or an individual, the following are carried out:

1) the acquisition by a person (group of persons) of shares with the right to vote in the authorized capital of a business entity, in which such person (group of persons) obtains the right to dispose of more than 20% of the said shares (stakes). This requirement does not apply to the founders of a business entity upon its formation;

2) obtaining ownership or use by one business entity (group of persons) of fixed production assets or intangible assets of another business entity, if the book value of the property that is the subject of the transaction exceeds 10% of the book value of fixed production assets and intangible assets of the business entity alienating the property ;

3) the acquisition by a person (group of persons) of rights allowing to determine the conditions for the conduct of an economic entity of its entrepreneurial activity (clause 2 of article 18 of the Law).

Tasks and goals of the antitrust authorities.

The main tasks and goals of the federal antimonopoly body, as well as the responsibility of its officials, are determined by the Law and other regulatory legal acts of the Russian Federation.

The main tasks of the federal antimonopoly body, directly specified in the Law, include:

Promoting the formation of market relations based on the development of competition and entrepreneurship;

Prevention, restriction and suppression of monopolistic activities and unfair competition;

State control over compliance with antimonopoly legislation.

The Federal Antimonopoly Body performs the following main functions, which are directly listed in the Law:

Submits to the Government of the Russian Federation proposals on the improvement of antimonopoly legislation and the practice of its application, conclusions on draft laws and other normative acts concerning the functioning of the market and the development of competition;

Gives recommendations to federal executive bodies, executive bodies of the constituent entities of the Russian Federation and local self-government on the implementation of measures aimed at promoting the development of product markets and competition;

Develops and implements measures to demonopolize production and circulation;

Supervises compliance with antimonopoly requirements during the creation, reorganization and liquidation of economic entities;

Controls the acquisition of shares (stakes) with voting rights in the authorized capital of business entities, which may lead to a dominant position of business entities on the markets in the Russian Federation or to restriction of competition.

To promote the development of product markets and competition, support entrepreneurship and demonopolization, the federal antimonopoly body may send recommendations to the relevant federal executive bodies, executive bodies of the constituent entities of the Russian Federation and local self-government bodies:

On the provision of preferential loans, as well as on the reduction of taxes or exemption from them for economic entities entering the market for a certain product for the first time;

On changing the scope of free, regulated and fixed prices;

On the creation and development of parallel structures in the spheres of production and circulation, including through centralized investments and loans;

On financing measures to expand the output of goods in order to eliminate the dominant position of certain economic entities;

On attracting foreign investment, creating organizations with foreign investment and free economic zones;

On licensing of export-import operations and changes in customs tariffs;

On amendments to the lists of activities subject to licensing and the procedure for their licensing.

The federal antimonopoly body takes part in the implementation of federal demonopolization programs, programs for the development of competition and support for entrepreneurship.

4. The impact of antitrust laws on the unity of the Russian market and economic development.

Antimonopoly legislation is one of the few types of legislation dividing the Russian market into separate commodity markets. In itself, such a division does not pose a particular problem and does not contradict the correctly understood constitutional principle of the unity of economic space. The point is that any economic space cannot be united if unity is understood as homogeneity. Another understanding can give a look at space from the point of view of an acting person, for whom space is a space for choice and decision-making and the desired unity of space should then mean the desire to increase its "extent" - to expand the possibilities of choice and activity for business and citizens. The space is indeed heterogeneous and classifying it into separate markets cannot in itself pose a problem. However, it is one thing to classify in order to understand the world, and another to transform it. As we have shown above, classifying a person as an entrepreneur can prevent them from seeing non-entrepreneurial features in their behavior and, moreover, lead to legal restrictions on their actions as a consumer.

The division of the Russian economic space into separate markets in antimonopoly legislation is not just a way of describing what is happening, but an instrument of action. The concept of a commodity market is included in the definition of a dominant position, the presence of which allows antimonopoly norms to be applied to a firm, which regulate the most important aspects of the activities of enterprises: an increase in capitalization, reorganization, production and sales structure. Thus, getting into the Register, created in accordance with the Federal Law "On Competition and Restriction of Monopolistic Activity in Commodity Markets" and the Resolution of the Government of the Russian Federation "On the Register of Business Entities with a Market Share of More than 35% of a Certain Product", means the possibility of quite serious additional costs ... The regional practice of maintaining such registers shows that when defining the geographical boundaries of the market, the boundaries of the subject of the federation and its districts are widely used. Therefore, even firms operating in such highly competitive sectors as the production of meat, bread and sausages are becoming "monopolists".

Considering antitrust regulation as a barrier to entry, we find that this barrier will be the most significant for regions with a relatively small internal market, either due to geographical size or due to the underdevelopment of the region. Thus, the main two consequences of antitrust regulation for regional development will be a general decrease in entrepreneurial activity and the flow of capital to regions with a more developed domestic market.

The legislative attempt to "normalize" the profits offered by antitrust laws is the most serious blow to the competition process. Other norms developed on the basis of the perfect competition model have a similar effect. There is only one choice: either competition continues, or schemes are imposed on it, copying the situation of absence (end) of competition. But if we place some place in the life of "normal profit" that can only arise as a result of "normal actions", we will see that competition and innovation disappear, and faceless owners of firms replace vigorously competing people.

The influence of the antimonopoly legislation directly on the release of goods can be shown by means of a historical reconstruction of the situation in which the antimonopoly legislation arose.

The most famous antitrust law that has become a model for many others, the Sherman Act, was passed in the United States in 1890. The real reason for the adoption of this act was serious pressure from the farmer lobby (and groups that joined them), who could not compete with new, mechanized agricultural production. the center of which was Chicago. Accordingly, the cause of concern among interest groups was not at all monopoly restrictive practices, but rather a high level of competition in sectors accused of monopoly. It was in these sectors that prices fell more than in other sectors, and the growth in output was also quite high. This is evidenced by the table below, based on statistics from 1880-1890. for a number of industries accused of monopoly. The situation was no different in the industries declared "natural monopolies".

5. Trends in the development of the regulatory framework of antimonopoly legislation in solving problems.

Today, antimonopoly legislation needs to be improved, mainly on the basis of generalization of law enforcement practice. It is necessary to update the legal framework so that it would allow to more reliably suppress abuses of market power, infringement of the interests of business entities, apply penalties to legal entities and individuals, including officials of federal and regional executive authorities and local government, better regulate the safety and quality of goods and services ... We need a law "On Protection of Competition in the Sphere of Financial Services."

Russian competition law was developed under strong monopolies and emerging market relations. Therefore, it is important for our country not only to limit monopoly and abuse of a dominant position, to achieve compliance with the rules of competition, to punish for their violations, but also to create a competitive environment, showing political will.

As for the directions of antimonopoly policy in Russia for the coming years, in December 2001, at a meeting of the Government of the Russian Federation, the concept of a medium-term government program for 2002-2007 was approved. "Structural Adjustment and Economic Growth." It contains a special section on antitrust policy.

Antimonopoly policy in the medium term will be implemented in the following main areas:

1. Improvement of the legal framework, forms and methods of antimonopoly control and regulation in order to prevent and suppress abuse of market power, collusion, agreements and concerted actions resulting in restriction of competition and (or) infringement of the interests of business entities or citizens, unfair competition.

2. Demonopolization of the economy and creation of conditions for the development of competition in monopolized commodity markets with a high degree of concentration of supplies, elimination of barriers to the development of competition and entry into the markets of other economic entities.

3. Counteraction to the creation of new monopolistic structures as a result of property redistribution, implementation of corporate investment policy and integration processes, including during the formation of FIGs.

4. Extension of antimonopoly requirements to the markets of financial, including banking and insurance, services.

5. Coordination of goals, objectives and measures for demonopolization and development of competition in commodity markets, harmonization of antimonopoly legislation within the framework of the common economic space of the CIS, adaptation of competition policy in order to enter Russia into the world economic community.

The developers of Russian antimonopoly legislation still have a lot of work to do, and it would be advisable to take into account the experience of foreign countries, while not forgetting the specifics of the Russian market.

To demonopolize the economy and develop competition, experts suggest:

To establish antimonopoly control over tenders, tenders, auctions, including when placing orders for the supply of products for state and municipal needs (in 1998 alone, financial turnover at such tenders and tenders reached 122 billion rubles);

Introduce tough measures against the actions of regional authorities that impede the freedom of movement of goods and capital throughout Russia;

Improve legal regulation of the use of public funds to expand the competitive environment, reduce the concentration of production and reduce departmental monopoly;

To harmonize the antimonopoly legislation of the CIS countries, to adapt their competition policy to international principles and rules.

6. State control over monopolistic activities in countries with developed market economies

In countries with developed market systems, the state assumed responsibility for the fate of the market and the creation of conditions for its effective functioning, having stood up to protect market competition and found effective means of antitrust prevention.

All industrialized countries are currently subject to legal regulation (usually within the framework of commercial law) of the process of capital concentration and competition in order to mitigate the economic and social consequences of monopolistic practices.

The development and adoption of antimonopoly legislation is one of the most important means of such state regulation of the economy. In the modern period, the main feature of this legislation is that it is aimed at protecting the so-called oligopoly as a market mechanism.

In developed countries, antitrust regulation has become a regular function of the state since the end of the 19th century and is based on the existing system of market relations, antitrust legislation (USA, Canada, Japan), or on legislation to combat restrictive economic practices (Scandinavian countries), or on the norms enshrined in major international agreements. Several countries have also enacted laws against unfair competition (including fraud) in manufacturing and trade. At the national level, there are antitrust authorities responsible for developing and implementing antitrust policy. In the United States, this is the Federal Trade Commission and the Department of Justice's antitrust division. In Germany, there is a Federal Office for State Supervision of Cartels and a Monopoly Commission, in England - the Commission on Mergers and Monopolization and the Judicial Chamber for Free Trade, in France and Spain - the Competition Council, in Japan - the Committee for Fair Deals.

Historically, two systems of antitrust regulation have developed: the American and the Western European. The criterion for their differences is the attitude towards monopoly. The first one declares all monopolies illegal. The second - prohibits not the monopoly itself, but the abuse of monopoly power. Governments take into account the pros and cons of large companies in implementing antitrust policies by discouraging anti-competitive behavior but not holding back efficient large-scale production.

For the first time, antitrust laws were passed in Canada (1889) and in the United States (1890). Today, American antitrust laws are considered one of the best developed and most tested by time. In the United States, the main laws governing monopoly activities and monopolized markets are the Sherman and Clayton Acts, the FTC Act, and the Seller-Kefauver Amendment.

The Sherman Antitrust Act of 1890 forms the core of antitrust policy in US economic life. According to it, "every contract and any association in the form of a trust or in another form, as well as a secret agreement aimed at restricting trade and commercial activity, is outlawed ..." This law also states that "every person who monopolized or monopolize ... any branch of a trade ... would be considered an offender. " Clayton's 1914 amendment to this law defines the violation of its articles as a "felony", punishable not only by monetary fines, but also by imprisonment. In special cases, the court may order the decentralization and division of the firm into a number of small enterprises.

From the point of view of American law, a company can be recognized as a monopolist and legal action can be initiated against it if it controls more than 6% of the market and there are facts indicating the use of unfair methods of competition.

American legislation is quite strict with regard to mergers of companies. For example, horizontal mergers - the merger of two competitors, for example, the automobile manufacturer Ford and Chrysler - are illegal if the aggregate market share of the formed company exceeds 15% of the market.

Exceptions exist only if one of the companies is on the verge of bankruptcy.

Vertical mergers are mergers of firms specializing in different stages of the production process in the same industry. Such mergers are also not allowed if each firm has 10 or more percent of the relevant market. Vertical mergers are believed to reduce the potential for competition between commodity traders. American antitrust law essentially permits conglomerate mergers of companies that are not technologically related to each other. For example, the telephone and insurance companies, since the monopolization of the market for one of the goods in this case does not occur.

The United States provides for fairly tough sanctions for violating antitrust laws. Companies that use illegal methods of competition and cause damage to counterparties and consumers by their actions are obliged to compensate for the losses incurred in three times.

However, in reality, cases of tightening in relation to monopoly companies are not used very often. For example, in the entire history of American antitrust law, about 30 companies have been disbanded. The most notorious cases were the dissolution of the oil refining and tobacco trusts in 1911 and the division of the ATT company in 1982. Lawsuits against monopoly companies last for years, since such processes are complex, require huge costs and attract a lot of funds. Thus, the United States Machinery Corporation case lasted 7 years, and IBM - 13 years.

In European countries, antitrust laws were adopted much later than in the United States. Some countries introduced it after the Second World War.

In contrast to the American antitrust legislation, which aims, as a rule, to follow the letter of the law, for European countries the principle of "common sense" is decisive in the antitrust policy of the state. The main goal of antimonopoly policy in most European countries is to improve product quality through the widespread development of competition. In England, the main antitrust authorities are the Trade Compliance Office and the Monopolies and Mergers Commission. Their function is to exercise general supervision. Their field of vision may be companies that control more than 25% of the market. Since the main goal of antitrust policy in England is to stimulate competition, direct administrative methods (such as prohibiting merger processes) are used to a limited extent.

In Great Britain, there are two systems of control over monopolies. In the first, based on fair trade and competition laws, the Fair Trade Office, the Monopoly Commission, and the Secretary of State for Trade and Industry play a key role. The second control system, provided for by the legislation on restrictive trade practices, assigns a key role to the Restrictive Practices Court. In general, the legislation is more liberal than the American antitrust, as it follows the traditional British policy of free trade and minimization of direct government interference in the economic activities of entrepreneurs. The functions of the Office include: collecting and analyzing information on abuse of a dominant position, transferring cases of a monopoly situation in any industry to the Commission on Monopolies, exercising control over alleged mergers of enterprises, transferring cases of cartel contracts to a court of restrictive practice, initiating cases on regarding the establishment and maintenance of resale prices. The main task of the Commission on Monopolies and Mergers is to investigate and report on the existence (or possibility of occurrence) of a monopoly situation or the implementation of a merger of enterprises. In the event that the Commission on Monopolies comes to a conclusion on the violation of public interests, the Secretary of State has broad powers to apply various measures of influence on the offender: to issue orders to terminate the contract, to prohibit the supply of goods, linking transactions, discrimination, to prohibit or restrict mergers, on the division of enterprises through the sale of any of their parts or in any other way.

In France, anti-monopoly legislation has been in effect since 1953. However, active actions against monopolies began to be carried out in the 70s. Prior to that, it was believed that tough antitrust policy could damage the underpowered domestic industry.

On the issue of control over merger processes, antitrust legislation is taking a tougher position with regard to horizontal mergers. If, in a vertical merger, the maximum company quota on the market is set at up to 40%, then in a horizontal merger, a merger is not allowed if the quota is exceeded by more than 25%.

The French legislation makes final decisions on the limitation of monopolistic activity through administrative procedures, and not through the courts. There are currently about 3 thousand government price controllers in France. Their main task is to control the state discipline of prices. Control over monopolistic activities is entrusted to the Competition Council, the Ministry of Economy and courts of general jurisdiction.

The Competition Council is considered to be an independent administrative body whose decisions cannot be “vetoed” by the Minister of Economy. He performs advisory functions commissioned by various institutions and organizations, and can also apply the following sanctions: order an enterprise or a person to stop the incriminated activity within a certain period; impose a fine on the company or person, the maximum value of which is 5% of the trade turnover of the offender's company; require the offender to publish the Council's verdict in certain journals. If an enterprise that has become a victim of anticompetitive policy claims compensation for damage, then it must apply to the court with this request.

In Germany, state regulation of market relations, which leads to mitigation of the negative consequences of excessive monopolization, is carried out by the so-called cartel authorities. These bodies include the Federal Office for Cartels, the Federal Minister for Economic Affairs and the state authorities. They are joined by the Commission on Monopolies, created to provide opinions on the concentration of enterprises in Germany. As noted above, German antitrust law is intermediate between the two antitrust law systems. A significant impetus in the development of antitrust law in Germany was the establishment of a free market economy there in the post-war period. In 1949, two bills were drafted: on ensuring competition by increasing efficiency and on the department for monopolies. Work in this direction was continued and ended with the adoption in 1957 of the Law against Restrictions on Competition, which in everyday life received the abbreviated name of the Cartel Law, which does not quite accurately reflect its content, since it is intended to regulate restrictions on competition not only in the form of cartels. The Law is currently in force as amended in 1989. Having entered into force on January 1, 1990, this is how it is now dated. It should be noted that the Cartel Law of the Federal Republic of Germany rests on two principles: the principle of prohibition and the principle of control and regulation of monopolistic activities. As in the United States, it prohibits a certain category of agreements, such as cartel agreements and cartel orders. However, these prohibitions are accompanied by numerous exceptions, which largely neutralize the principle of the prohibition of monopoly practice. So, if the Sherman Law declares the conclusion of any agreement restricting trade illegal, then the Cartel Law of the Federal Republic of Germany invalidates the execution of cartel agreements or regulations. Moreover, unlike horizontal competitive constraints, vertical constraints are not formally prohibited. They are subject to administrative controls to prevent anti-competitive practices.

Of the European countries, the latest antitrust law was adopted in Italy - in 1990. Italian antitrust law is considered one of the most liberal in Europe. Even the sales quotas of individual firms are not regulated.

In recent years, control over the activities of monopolies has been introduced at the European level. The EU has established a Merger Control Commission. The Commission can control mergers if the global turnover of a transnational company in an EU country exceeds 5.0 billion ECU.

Japan's antitrust laws are considered fairly liberal. It recognizes the dominant position of one company, which controls 50% of the market, two - 75%. There are incentives for R&D firms.

Dispute resolution is usually carried out neither judicially nor administratively, but only through negotiations.

In the West, antitrust policy is a flexible system of permanent, mobile-restructuring measures and sanctions that are prohibitive, restrictive or encouraging.

CONCLUSION

Summarizing what has been said, it can be argued that antitrust legislation is the most important component of the modern economy.
The sphere of its functioning affects the interests of not only producers, but also consumers, providing some with the opportunity to sell their goods on the market in a competitive environment, and others - the optimal prices for goods and services.

The experience of Western countries in antitrust law is vast and varied. The emergence of such legislation is due to historical reasons. Due to the peculiarities of economic development in different countries, different systems of antimonopoly regulation have developed. Despite the difference in approaches to antitrust regulation in various Western countries. The antimonopoly practice of the United States is considered to be especially developed in this regard, since its legal (legislative) aspect, like other areas of law in the United States, is based on the precedent system.

The specificity of Russian monopolies also affected the specifics of the legislative regulation of their activities. In capitalist countries, monopolies appeared when market relations already existed, and the state, in order to prevent the stifling of competition, began to introduce restrictive norms. Russian competition law was developed under strong monopolies and emerging market relations. Therefore, the Western experience in a certain, and quite significant part of it is inapplicable in Russian conditions.

Of course, the demonopolization of production based on state ownership is a long and difficult process. In part, overcoming monopoly can be carried out by dividing enterprises, mechanically dividing them into parts. For the construction of new backup enterprises, too many funds would be required, which our country does not currently have. It can be assumed that overcoming monopoly will go through the diversification of production at existing enterprises, which are capable of using free capacities (or expanding existing ones) to produce scarce goods. In the process of the formation of market relations, the share of state ownership is gradually decreasing, but various forms of individual and collective ownership are developing: individual enterprises, partnerships with full and limited liability, open and closed joint-stock companies, cooperatives, associations, etc. Various forms of ownership functioning in the general system of economic relations cannot be isolated from each other. Overcoming their specifics, they inevitably intertwine. On the basis of this interweaving, mixed forms of ownership can arise. The objective basis of this interweaving is the mutual complementarity and use of those specific opportunities that are inherent in each of the specific forms of management. So, in the Russian joint-stock companies now the property of individual citizens, collectives and the state is being merged. The creation and development of joint-stock companies is the main way of privatization of property.

In Russia, at this stage, the problem of monopolization ceases to be purely economic and becomes more and more political. However, it is common knowledge that the economy, first of all, should not have political affiliation. And only then will the state fully be able to replace the monopolies that have been taking shape for decades with a free and self-organizing market.

At the regional level, there is currently a negative tendency to strengthen the administrative regulation of economic processes in the regions. According to the data of the MAP of Russia, a significant number of cases of violation of antimonopoly legislation have recently been initiated against local authorities. They were associated with the establishment of various types of administrative barriers.

These include barriers to entry into local, local commodity markets for nonresident economic entities that can successfully compete with local producers, the introduction of increased local tax rates for nonresident enterprises, increased license fees, complication of the procedure for licensing activities, complication of the procedure for registering enterprises, creation of obstacles in the allocation of land, priority distribution of any types of limited resources, etc.

It should also take into account the fact that the government and the largest economic entities operating in this product market. This allows the latter to lobby their interests and seek solutions against potential competitors, including in matters of state aid and government orders.

Bibliography:

1. Constitution of the Russian Federation

2. Avdasheva S.B., Aronin V.A., Akhpolov I.K. and others. Ed. A.G. Tsyganova. Competition and Antitrust Regulation / Textbook for Universities. Moscow: Logos, 1999 368 p.

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21.http: //www.socionet.ru/files/book_ekonomika_rus_gp0675/25.xml

Antimonopoly legislationAbstract >> Economic theory

Conclusions ……………………………………………………………………… 19II. Antimonopoly legislation…………………………………...20 1. Antitrust organs: system, goals and objectives …………… ... 20 2. Antimonopoly legislation RF………………………… .23 Conclusion ……………………………………………………………… ..30 ...

Target state antimonopoly policy - demonopolizing the economy, developing competition and increasing production efficiency based on market regulation of economic processes.

The strategic objectives of the competition policy in Russia at the present stage were formulated in 2008 by the President of the Russian Federation V.V. Putin:

“Solving the problem of radically increasing the efficiency of our economy, we must create incentives and conditions for the advancement of a number of areas ...

development of new sectors of global competitiveness, primarily in high-tech industries;

development of market institutions and a competitive environment that will motivate enterprises to reduce costs, update products and flexibly take into account consumer demands " V. V. Putin, President of Russian Federation. Speech at an enlarged meeting of the State Council "On the development strategy of Russia until 2020", 8 Feb. 2008 // Ros. gas. - 2008 - 10 feb.

To achieve these goals, each institution of state power must create conditions for the organic development of a competitive environment, the effective functioning of business, and the antimonopoly body, within its competence, must solve the tasks of control and supervision over compliance with competition laws, control over economic concentration, antimonopoly regulation in natural sectors. monopoly, control over the placement of government orders, assessment of control over the development of competition in strategic sectors, etc.

Monopolistic activity is the antipode of competition, since it is aimed at restricting, preventing or eliminating it and is directly prohibited by Article 34 of the Constitution of the Russian Federation. It is at the implementation of this provision of the Constitution of the Russian Federation that the antimonopoly legislation of the Russian Federation is directed.

The antimonopoly legislation in the Russian Federation includes the following regulations:

· "The Constitution of the Russian Federation" was adopted by popular vote on December 12, 1993,
· "The Criminal Code of the Russian Federation" dated June 13, 1996,
· "Code of the Russian Federation on Administrative Offenses" dated December 26, 2001,
· "On Protection of Competition" dated July 08, 2006,
· "On financial and industrial groups" dated November 30, 1995,
· "On natural monopolies" of August 17, 1995,
· "On Joint Stock Companies" dated December 26, 1995,
· "On Advertising" dated March 13, 2006, etc., as well as regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation.

To implement antimonopoly policy, support market structures and entrepreneurship, state regulation of tariffs in the field of natural monopolies, suppress monopoly on commodity markets, create conditions for healthy competition in the Russian Federation, the Federal Antimonopoly Service of the Russian Federation (hereinafter FAS) operates. It is the FAS that is responsible for the main responsibilities for the implementation of the antimonopoly policy. On the basis of antimonopoly legislation, the FAS uses the following methods of antimonopoly regulation:

· Restrictive measures;
· Control over the strengthening of economic concentration;
· Prohibition of unfair competition.

Restrictive measures

Restrictive measures are stipulated by the Law "On Protection of Competition" and are applied by the antimonopoly authority to business entities that violate the antimonopoly legislation. These are bans on monopolistic activities and unfair competition, on the actions of authorities and management, which may adversely affect the development of competition.

The law prohibits setting monopoly high or monopoly low prices, withdrawing goods from circulation in order to create or maintain a deficit or increase the price, impose contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract, include in the contract discriminatory conditions that set the counterparty to an unequal position in comparison with other enterprises, to prevent other enterprises from entering the market (or leaving it), to encourage the counterparty to refuse to conclude contracts with individual buyers (customers), despite the fact that there is an opportunity to produce or supply the desired product.

Monopoly high price: Article 6 of the Law “On Protection of Competition” defines this concept: “a monopoly high price of a product (with the exception of a financial service) is the price set by a dominant economic entity if:

1) this price exceeds the price that, in a competitive market on a commodity market, comparable in terms of the quantity of goods sold for 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 (hereinafter referred to as a comparable commodity market), establish economic entities that are not part of the same group of persons with buyers or sellers of goods and do not occupy a dominant position in a comparable product market;
2) this price exceeds the amount of costs and profits necessary for the production and sale of such a product.
2. The price of a commodity is not recognized as monopolistically high if it does not meet at least one of the criteria specified in Part 1 of this Article. The monopoly high price of a product established by a natural monopoly within the tariff for such a product is not recognized.

Exclusively low price: the price of the purchased goods, set by the buyer dominating the market of the given goods in order to obtain additional profit and (or) compensate for their unreasonable costs at the expense of the seller; the price deliberately set by the seller dominating the market for a given product at a level that brings losses from the sale, in order to oust competitors from the market.

According to the federal law "On natural monopolies" adopted by the State Duma of the Russian Federation in 1995 "In order to conduct an effective state policy in the areas of activity of subjects of natural monopolies, regulatory bodies of natural monopolies exercise control over actions that are performed with the participation or in relation to subjects of natural monopolies and which may result in infringement of the interests of consumers of the goods in respect of which regulation is applied in accordance with this Federal Law ... ". As a result, in 2000 a special Unified Tariff Body (UTS) was created to regulate the activities of natural monopolies. After the reorganization of the structure of the Russian government, the UTS was replaced by the Federal Tariff Service.

In other words, in industries with a natural monopoly, the freedom of market behavior - first of all, the freedom of price formation - is limited, and state economic management has been introduced to replace it.

The Federal Tariff Service is the federal executive body authorized to carry out legal regulation in the field of state regulation of prices (tariffs) for goods (services) in accordance with the legislation of the Russian Federation and control over their application, with the exception of regulation of prices and tariffs related to the powers of others. federal executive bodies, as well as the federal executive body for the regulation of natural monopolies, performing the functions of determining (setting) prices (tariffs) and exercising control on issues related to the determination (setting) and application of prices (tariffs) in the spheres of activity of subjects of natural monopolies.

Control over increasing economic concentration

Along with prohibitions on the conclusion of agreements harmful to competition and on the abuse of a dominant position, control over economic concentration is applied to combat the restriction of competition. It arises:

· As a result of creation, reorganization or merger of enterprises and associations;
· When it becomes possible for a group of organizations to pursue a coordinated policy on the market. According to the Law "On Competition and Restriction of Monopolistic Activity in Commodity Markets", if an enterprise reaches a certain threshold in terms of the volume of operations, it must obtain the consent of the antimonopoly authority for its actions (preliminary control) or notify it about them (subsequent control).

Among the restraints of competition should be highlighted:

first, agreements that prevent other businesses from entering the market;

secondly, refusal to conclude contracts with certain sellers or buyers;

thirdly, agreements on dividing the market on a territorial basis or on the range of products sold, on a circle of sellers or buyers;

fourth, pricing agreements.

Pre-controlled:

first, the creation, merger and acquisition of commercial organizations, unions, unions and associations, if their assets exceed 100 thousand minimum wages;

secondly, the liquidation and separation (separation) of state and municipal unitary enterprises, whose assets exceed 50 thousand minimum wages, if this leads to the emergence of an enterprise whose share in the product market exceeds 35% (except for cases when the enterprise is liquidated by a court decision ). In addition, prior consent is required when:

· a person (group of persons) acquires shares (stakes) with the right to vote in the authorized capital of a business entity if he (she) acquires the right to dispose of more than 20% of such shares. This requirement does not apply to the founders of a business company when it is formed;
· One enterprise (group of persons) obtains ownership or use of fixed production assets or intangible assets of another enterprise and the book value of the property that is the subject of the transaction exceeds 10% of the book value of these funds and assets of the enterprise alienating the property;
· A person (group of persons) acquires the rights allowing to determine the conditions for conducting entrepreneurial activities of an enterprise or the functions of its executive body.

Bans on actions of authorities and authorities that may adversely affect competition.

The development of market relations presupposes the elimination of direct interference of state authorities in the activities of enterprises.

We are talking about the dissemination of false, inaccurate or distorted information that can cause losses or damage, misleading consumers about the nature, method, place of manufacture, consumer properties and quality of goods, as well as an incorrect comparison of your own product with similar products of competitors. Unfair competition also includes the receipt, use, disclosure of scientific, technical, industrial, trade information or trade secrets without the consent of the owner.

The interest of entrepreneurs in protecting the business reputation of an enterprise and legal protection of trademarks from their illegal use is growing.

The law prohibits adopting regulations and taking actions that restrict the independence of enterprises, create discriminatory or favorable conditions for some to the detriment of others and thereby restrict competition, infringe on the interests of enterprises or citizens.

However, the authorities of the constituent entities of the Federation and local self-government bodies commit numerous violations, in particular, they unreasonably provide benefits, restrict the creation of enterprises, impose bans on their activities, the sale or purchase of goods, indicate the priority of some contracts, arbitrarily set the size of the registration fee, and prevent goods from entering the market. and services of "out-of-town" enterprises, etc.

The legislation prohibits officials of state power and administration:

At first , engage in entrepreneurial activity, own an enterprise;

Secondly , vote independently or through representatives by means of their shares (contributions, shares, stakes) at general meetings of shareholders;

third , combine the functions of executive authorities and local self-government with the functions of economic entities, as well as endow them with the functions and rights of these bodies.

In addition, it is not allowed to create ministries, state committees, etc. to monopolize the production or sale of goods, as well as to empower existing bodies with powers that can restrict competition. Therefore, decisions of the executive power and local government on the creation, reorganization and liquidation of enterprises or the provision of benefits must be coordinated with the antimonopoly department.

Prohibition of unfair competition.

Actions aimed at acquiring advantages that are contrary to legislation, business customs, the requirements of integrity, reasonableness and fairness and which have caused (may cause) losses to competitors or have damaged their business reputation.

Responsibility for violation of antimonopoly legislation

In the final chapter of this work, the issue of liability for violation of the requirements of antimonopoly legislation should be raised, which is the basis for civil, administrative or criminal liability.

The Criminal Code of the Russian Federation includes Article 178, which provides for criminal liability for monopolistic actions committed by establishing monopoly high or monopoly low prices, as well as restricting competition by dividing the market, restricting access to the market, eliminating other subjects of economic activity from it, establishing or maintaining uniform prices. "The disposition of Article 178 of the Criminal Code of the Russian Federation does not speak of a certain type of market, therefore, it can be concluded that the article extends its effect to the markets of financial services."

Restriction of access to the market is an act (action or inaction) of a guilty person, creating any unlawful obstacles to entry into the market of this or that economic entity and infringing upon its freedom of economic activity. Restriction of access to the market can be expressed in the physical obstruction of the activities of competitors in the market, the introduction of unreasonable bans, the creation of an unfavorable mode of activity, the restriction of the movement of goods and financial services, committed by both legal entities and state executive bodies and local governments.

The crime in question is a minor offense. The maximum punishment under part 1 is imprisonment for up to two years, and in the case of violence or threats (part 3 of this article) up to 7 years. It should be noted that the overwhelming majority of cases of violations of the antimonopoly legislation of the Russian Federation are of an administrative nature.

For consideration of each case on violation of the antimonopoly legislation, the antimonopoly body shall create, in the manner prescribed by the Federal Law "On Protection of Competition", a commission to consider the case on violation of the antimonopoly legislation. The Commission acts on behalf of the antimonopoly body and, after considering the case, makes a decision or order.

The decision or order of the antimonopoly body can be appealed within three months from the date of the decision or issuance of the order. In the case of filing an application with the court, the execution of the order of the antimonopoly authority is suspended until the entry into force of the court decision.

If, during the consideration of a case on violation of the antimonopoly legislation, the antimonopoly body reveals circumstances indicating the existence of an administrative offense, the antimonopoly body initiates an administrative offense case in accordance with the procedure established by the legislation of the Russian Federation on administrative offenses.

The Code of Administrative Offenses of the Russian Federation contains two articles that can be directly attributed to the antimonopoly legislation of the Russian Federation, in particular: article 14.6. "Violation of the pricing procedure" and article 14.9. "Restriction of Free Trade".

For example, the sanction of Article 14.9. of this Code, establishes the following penalties: "the imposition of an administrative fine in the amount of forty to fifty times the minimum wage."

In accordance with Art. 2 of the Law on Protection of Competition antimonopoly legislation of the Russian Federation(hereinafter - antimonopoly legislation) is based on the Constitution of the Russian Federation, the Civil Code and consists of the Law on the Protection of Competition, other federal laws regulating relations related to the protection of competition, including the prevention and suppression of monopolistic activities and unfair competition. These relations may be regulated by decrees of the Government of the Russian Federation, regulatory legal acts of the federal antimonopoly body in cases provided for by antimonopoly legislation.

Thus, a certain hierarchy of normative legal acts regulating relations related to the protection of competition is being built:

1) the Constitution of the Russian Federation;
2) international treaties;
3) Civil Code;
4) Law on the Protection of Competition;
5) other federal laws regulating relations related to the protection of competition;
6) decrees of the Government of the Russian Federation in cases stipulated by antimonopoly legislation;
7) regulatory legal acts of the federal antimonopoly body in the cases provided for by the antimonopoly legislation.

The only remark may be an indication that, in relation to antitrust regulation, federal laws can be divided into two groups: a) laws governing relations related to the protection of competition; b) laws governing relations that affect the state of the competitive environment.

This division is due to the fact that the competitive environment is dependent not only on the laws, the action of which is directly directed at it, but also on the laws, the subject of regulation of which are relations that do not directly affect competition, but adjacent to it, creating the preconditions for competitive relations ...

According to the Constitution of the Russian Federation, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law (part 1 of article 34); in the Russian Federation, the unity of the economic space, free movement of goods, services and financial resources, support for competition, freedom of economic activity are guaranteed (part 1 of article 8); on the territory of the Russian Federation, economic activities aimed at monopolization and unfair competition are not allowed (part 2 of article 34), as well as the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources; restrictions on the movement of goods and services may be introduced in accordance with federal law if it is necessary to ensure safety, protect the life and health of people, protect nature and cultural values (Article 74).

Based on the above provisions of the Constitution of the Russian Federation in conjunction with the provisions of its Art. 2, 17, 18 and 45 (part 1), the Russian Federation should create the most favorable conditions for the functioning of the economic system as a whole, which implies the need to stimulate a free market economy based on the principles of self-organization of economic activity of entrepreneurs as its main subjects, and the state of special measures aimed at protecting their rights and legitimate interests and thereby attaining the goal of optimizing state regulation of economic relations.

It should be noted that the Constitution of the Russian Federation prohibits the implementation of economic activities aimed at monopolization, which is not entirely correct and which has already been repeatedly pointed out in the literature. In this case, we should talk about the need to prohibit the implementation of monopolistic activities, and not about the prohibition of monopolies or monopolization.

There are areas in which the presence of monopolies is the standard state of the market. Thus, the Law on Natural Monopolies is aimed at achieving a balance of interests of consumers and subjects of natural monopolies, ensuring the availability of the goods they sell for consumers and the effective functioning of subjects of natural monopolies.

The norms of the Law on the Protection of Competition, allowing the implementation of activities aimed at increasing the share of an economic entity in the market (i.e., at monopolization), prohibit the abuse of such a monopoly (dominant) position (Article 10), to carry out monopolistic activities (Clause 10 of Art. 4 of the Law on Protection of Competition).

Therefore, this provision of the Constitution of the Russian Federation should be interpreted in a narrow sense - as aimed at consolidating the constitutional principle of supporting competition and antimonopoly regulation.

International treaties. The Constitution of the Russian Federation establishes that the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty are applied.

A part of the legal system of the Russian Federation is also the international treaties in force concluded by the USSR, in respect of which the Russian Federation continues to implement the international rights and obligations of the USSR as a successor state of the USSR.

Part 3 of Art. 2 of the Law on the Protection of Competition determines that if an international treaty of the Russian Federation establishes rules other than those provided for by the Law on the Protection of Competition, the rules of the international treaty of the Russian Federation shall apply. Article 7 of the Civil Code, establishing the relationship between civil law and the norms of international law, contains similar norms.

International agreements on the protection of intellectual and industrial property (patents, trademarks, industrial designs, etc.), including the Convention for the Protection of Industrial Property of March 20, 1883, in accordance with Art. 10.bis of which any act contrary to fair practice in industrial and commercial affairs is considered to be an act of unfair competition.

The Agreement on the Free Trade Zone, signed in St. Petersburg on October 18, 2011, ratified by the Federal Law of 01.04.2012 No. 21-FZ "On Ratification of the Agreement on the Free Trade Zone", defines the conditions for the proper and effective functioning of the free trade zone and free movement of goods, facilitating the integration of its participants into the world economy and the international trading system.

A number of agreements were signed between the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation in Moscow on December 9, 2010 to ensure the effective functioning of commodity markets on the common customs territory of the member states of the Customs Union and to harmonize national legislation. In particular, the Agreement on Common Principles and Rules of Competition, ratified by Federal Law No. 185-FZ of 11.07.2011 "On the Ratification of the Agreement on Common Principles and Rules of Competition" states and actions that have a negative impact on competition in cross-border markets on the territory of two or more states.

The agreement on common principles and rules for regulating the activities of natural monopoly entities, ratified by Federal Law No. 183-Φ3 dated July 11, 2011 "On the ratification of the Agreement on common principles and rules for regulating the activities of natural monopoly entities", defines common principles and general rules for regulating the activities of natural monopoly entities states aimed at ensuring the availability of services sold by subjects of natural monopolies, the efficiency of functioning and development of subjects of natural monopolies.

The Federal Antimonopoly Service actively cooperates with international organizations and foreign antimonopoly agencies in the field of antimonopoly policy, combating unfair competition and state regulation of natural monopolies.

The agreement of the CIS countries of October 9, 1992 "On the principles of approximation of the economic legislation of the member states of the Commonwealth" established the need to work on the approximation of legislation governing economic activity, in particular, antimonopoly legislation.

The Government of the Russian Federation adopted Resolution No. 127 of February 14, 2000 "On Signing an Agreement on Conducting a Coordinated Antimonopoly Policy". The purpose of this Treaty is to create a legal and organizational basis for cooperation between the signatories to pursue a coordinated antimonopoly policy and develop competition, as well as to eliminate factors negative for trade and economic development and to prevent actions that damage the economic interests of the member states as a result of monopolistic activities and (or) unfair competition.

On the basis of the Agreement on the Conduct of a Coordinated Antimonopoly Policy (Moscow, January 25, 2000), the Interstate Council on Antimonopoly Policy (ICAP) was established, which: commodity market; contributes to the development and improvement of national legislation on competition issues; develops and recommends to the parties the rules and a mechanism for the implementation of specific actions to prevent, restrict and suppress monopolistic activities and unfair competition.

In addition to the above documents, the contractual and legal framework of the ICAP consists of: Agreement on the main directions of cooperation between the CIS member states in the field of consumer protection; Memorandum of cooperation in the field of competition policy between ICAP, the Competition Council of the Republic of Latvia, the Competition Council of Romania and the Fair Trade Commission of the Republic of Korea.

International cooperation with neighboring countries is also carried out on the basis of other bilateral agreements of various levels: the Memorandum of Cooperation between the Interstate Council on Antimonopoly Policy and the Interstate Aviation Committee, the Agreement between the Ministry of the Russian Federation on Antimonopoly Policy and Support of Entrepreneurship and the Ministry of Economy and Reforms of the Republic of Moldova on cooperation in the field of competition policy; Cooperation programs between the OFAS Russia for St. Petersburg and the Leningrad region and the Kiev territorial branch of the Antimonopoly Committee of Ukraine; Agreement between the Government of the Russian Federation and the Cabinet of Ministers of Ukraine.

The Civil Code of the Russian Federation (part 1) as a fundamental act of civil legislation was adopted in 1994.But even before that, since the beginning of economic reform and the construction of market relations, norms aimed at protecting competition were introduced into the legislation (see paragraph 9 of Article 2 Law of the RSFSR of 24.12.1990 No. 443-1 "On property in the RSFSR"; clause 3 of article 5 of the Fundamentals of Civil Legislation of the USSR and the republics of 31.05.1991).

The Civil Code aims to consolidate the legal link between competitive and civil relations. According to Part 1 of Art. 2 of the Law on the Protection of Competition, antimonopoly legislation is based on the Constitution of the Russian Federation and the Civil Code.

The Law on the Protection of Competition formulates the requirements for economic entities when they enter into civil law relations with other participants in civil turnover. So, for persons holding a dominant position in the market, restrictions have been introduced, provided for in Art. 10 of the Law on Protection of Competition; for persons, regardless of whether they occupy a dominant position or not, there are bans on agreements restricting competition (Article 11 of the Law on Protection of Competition) and on unfair competition (Article 14 of the Law on Protection of Competition). With this in mind, arbitration courts should keep in mind that the requirements of antimonopoly law apply to civil law relations. This means, in particular, that the decision or order of the antimonopoly body cannot be recognized as invalid (and the antimonopoly body cannot be denied to satisfy its claims) only on the basis of the qualification of the relevant legal relationship with the participation of an economic entity to which the order of the antimonopoly body has been issued or to which this body filed a claim as civil law (clause 1 of the resolution of the Supreme Arbitration Court of the Russian Federation No. 30).

Article 1222 of the Civil Code establishes that the law of the country whose market is affected by such competition applies to obligations arising from unfair competition, unless otherwise follows from the law or the essence of the obligation.

According to paragraph 7 of Art. 1252 of the Civil Code in cases where the violation of the exclusive right to the result of intellectual activity or to a means of individualization is recognized in the prescribed manner as unfair competition, the protection of the violated exclusive right can be carried out both in the ways provided for by the Civil Code and in accordance with antimonopoly legislation.

Federal Law of July 26, 2006 No. 135-Φ3 "On Protection of Competition" applies to relations related to the protection of competition, including the prevention and suppression of monopolistic activities and unfair competition, and in which Russian legal entities and foreign legal entities, organizations, federal executive bodies, state authorities of the constituent entities of the Russian Federation, local self-government bodies participate , other bodies or organizations performing the functions of these bodies, state extra-budgetary funds, the Central Bank of the Russian Federation, individuals, including individual entrepreneurs.

The named law is a complex normative legal act, since it includes substantive and procedural, private and public law norms. The purpose of such an association was the need to consolidate in one law the norms governing relations related to the protection of competition, and to create a basis for establishing the specifics in the regulation of relations for the protection of competition in certain industries.

Other federal laws governing relations related to the protection of competition. These laws contain provisions directly aimed at protecting competition.

A striking example of the establishment of features in the legal regulation of relations for the protection of competition is the Law on the Electricity Industry, in accordance with Art. 25 of which antimonopoly regulation and control in the wholesale and retail electricity markets are carried out by the antimonopoly body in accordance with the antimonopoly legislation of the Russian Federation, regulatory legal acts of the Government of the Russian Federation, taking into account the specifics established by the specified law, and acts of the federal antimonopoly body adopted in accordance with regulatory legal acts of the Government of the Russian Federation.

Important is the Law on Natural Monopolies, which establishes the status of subjects of natural monopolies and rules of conduct in a market in a state of lack of competition, prohibiting curbing the economically justified transition of the spheres of natural monopolies from a state of natural monopoly to a state of a competitive market.

Some laws establish specificities in relation to the Law on the Protection of Competition. Thus, the Federal Law of 01.12.2007 No. 315-Φ3 "On Self-Regulatory Organizations" establishes, among other things, the conditions for the coordination of economic activities, admission to the market, etc. Clause 7 of Art. 4 of this Law determines that the standards and rules of a self-regulatory organization must prohibit members of a self-regulatory organization from carrying out activities to the detriment of other business or professional entities, and must also establish requirements that prevent unfair competition, actions that cause moral harm or damage to consumers of goods ( works, services) and other persons, actions that damage the business reputation of a member of a self-regulatory organization or the business reputation of a self-regulatory organization.

Some of the laws regulating a certain type of socio-economic relations contain norms that only refer to the Law on the Protection of Competition. For example, Art. 35 of the Federal Law of October 29, 1998 No. 164-FZ "On Financial Lease (Leasing)" indicates that the prevention, restriction and suppression of monopolistic activities and unfair competition in the leasing services market are provided by the federal antimonopoly body in accordance with antimonopoly legislation.

Laws regulating relations that influence the state of the competitive environment. These laws do not set as their goal the regulation of relations for the protection of competition, but they cannot be ignored, since they establish rules that have a formative and indirect impact on the state of the competitive environment.

These include, in particular: the Law on Advertising, the purpose of which is to develop markets for goods, works and services on the basis of observing, among other things, the principles of fair competition; The Law on the Contract System, which regulates relations related to procurement for state or municipal needs, including with a view to promoting fair competition; The Procurement Law, which establishes the specifics of the procurement of goods, works, services for the needs of certain types of customers in order to develop fair competition.

Resolutions of the Government of the Russian Federation and normative legal acts of the federal antimonopoly body in cases stipulated by antimonopoly legislation.

These normative legal acts are adopted only in cases where the federal laws constituting the antimonopoly legislation directly instruct the Government of the Russian Federation or the federal antimonopoly body to adopt the corresponding act. The number of these acts is sufficiently large, they regulate narrow issues, and therefore will be named when considering certain issues of antimonopoly regulation.

In accordance with paragraph 4 of Part 2 of Art. 23 of the Law on Protection of Competition, FAS Russia is empowered to issue normative legal acts provided for by this law. Regulatory legal acts may be issued by the FAS Russia in the form of resolutions, orders, orders, rules, instructions and regulations in accordance with clause 2 of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration, approved by the Government of the Russian Federation of 13.08.1997 No. 1009 The publication of normative legal acts in the form of letters and telegrams is not allowed. Structural divisions and territorial bodies of federal executive bodies are not entitled to issue normative legal acts.

According to clause 1, 5.2.10 of the Regulation on the FAS, this service is an authorized federal executive body that carries out the functions of adopting regulatory legal acts and monitoring compliance with antimonopoly legislation, for which it is empowered on the basis of and pursuant to the Constitution of the Russian Federation, federal constitutional laws , federal laws, acts of the President of the Russian Federation and the Government of the Russian Federation independently adopt normative legal acts on issues in the established field of activity, with the exception of issues whose legal regulation in accordance with the Constitution of the Russian Federation and federal constitutional laws, federal laws, acts of the President of the Russian Federation and the Government of the Russian Federation is carried out exclusively federal constitutional laws, federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation.

Antimonopoly regulation is characterized by the use of norms of various branches of law (civil, administrative, criminal, etc.), and their combination, taking into account the establishment of special mechanisms of legal regulation, allows the implementation of measures to protect competition. Therefore, antimonopoly legislation is complex in nature, combines dispositive and mandatory norms, private and public law principles.

Sources of competition law are: regulatory legal acts; generally recognized principles and norms of international law, international treaties of the Russian Federation; business customs; requirements of integrity, reasonableness and fairness. The first two categories of sources were discussed above.

A custom is a rule of conduct that has developed and is widely applied in any area of business or other activity, not provided for by legislation, regardless of whether it is recorded in any document.

A custom can be traditions of fulfilling certain obligations, etc. A custom can be applied regardless of whether it is recorded in any document (published in the press, set out in a court decision that has entered into legal force on a specific case containing similar circumstances, etc.). An example of a custom in the field of business activity is the "International rules for the interpretation of trade terms -" Incoterms "developed by the International Chamber of Commerce.

Customs that contradict the provisions of the law or the contract that are binding on the participants of the relevant relationship are not applied.

The signs of custom boil down to the following: 1) the rule of behavior must be established, i.e. sufficiently constant and definite in its content; 2) it should be applied widely, and not have a highly specialized, private character; 3) the scope is limited to economic relations; 4) it should not be provided for by legislation.

In order of priority, customs are placed after legislation and contracts. From the analysis of Art. 5 and 6 of the Civil Code, it follows that customs are applied when a gap is found in civil legislation that is not filled by agreement of the parties.

The importance of custom for competition protection relationships is great. Firstly, the Law on the Protection of Competition itself defines unfair competition as any actions of economic entities (groups of persons) that, inter alia, contradict the customs of business turnover. Secondly, the Law on Protection of Competition, defining the organizational and legal basis for the protection of competition, including measures to prevent and suppress anti-competitive behavior, often leaves room for subjective discretion, does not contain an exhaustive list of prohibitions. In these conditions, the replenishment of legal regulation through the use of business customs is extremely large.

The requirements of integrity, reasonableness and fairness are named in the Law on Protection of Competition in relation to the concept of unfair competition. As O. A. Gorodov rightly notes, “these requirements are of an evaluative nature and lie in the plane of the ethics of business relations. The current legislation does not disclose their meaning, but uses them, following the principle bona fides, implying fair business conduct. "

Judicial practice is very important for understanding the essence of competitive relations, although the discussion about its qualification as a source of law is not complete. First of all, it is necessary to take into account the legal positions formed by the higher courts when considering specific cases, generalizing the practice of applying certain categories of cases and developing recommendations for the application of legislative norms.

The importance of studying judicial practice is also explained by the fact that the prohibitions and prescriptions often formulated in the antimonopoly legislation are of a situational nature. At the same time, the given lists of actions (inaction) are open and non-exhaustive.

At the same time, the establishment by the antimonopoly legislation of prohibitions and open lists of actions (inaction) falling under their signs does not indicate the ambiguity of the content of the relevant norms. The variety of circumstances influencing the state of competition makes it impossible to establish an exhaustive list of them in the law. The legislator is forced to use evaluative characteristics in order to effectively apply the norm to an unlimited number of specific legal situations.

In the event of conduct that falls under the signs established by the antimonopoly legislation, the antimonopoly authorities and the court are obliged, taking into account specific circumstances, to establish the fact of anticompetitive behavior. Applying a general legal prescription to the specific circumstances of the case, the law enforcement officer makes a decision within the margin of appreciation granted to him by the law, which cannot be considered as a violation of any constitutional rights and freedoms of citizens.

Clarifications on the application of antimonopoly legislation by the federal antimonopoly body are important for the purposes of antimonopoly regulation; generalizations, analytical materials and recommendations on the practice of applying antimonopoly legislation.

In accordance with clauses 5 and 9, part 2 of Art. 23 of the Law on Protection of Competition, FAS Russia is authorized to provide clarifications on the issues of its application of antimonopoly legislation; to generalize and analyze the practice of application of antimonopoly legislation, to develop recommendations for its application.

The Federal Antimonopoly Service is endowed with the following powers: summarizes and analyzes the practice of applying the legislation of the Russian Federation in the established field of activity, develops recommendations for the application of antimonopoly legislation (clause 5.4 of the FAS Regulation); has the right to provide legal entities and individuals with explanations on issues within the competence of the FAS Russia (clause 6.3 of the FAS Regulations). In fulfillment of this function, by order of the FAS Russia dated January 20, 2012 No. 22, the Administrative Regulations of the Federal Antimonopoly Service on the execution of the state function of providing clarifications on the application of antimonopoly legislation by the federal antimonopoly body were approved.

Letters from the FAS Russia with explanations, recommendations, generalizations and analytical materials on the practice of applying the legislation, addressed to an indefinite circle of persons, do not meet the criteria of a regulatory legal act, and therefore cannot have legal significance and generate legal consequences for an indefinite circle of persons. The provisions contained in the letters of the FAS Russia cannot be considered as establishing rules of conduct that are binding on business entities and which are subject to repeated application in the exercise of their established functions.

The territorial bodies of FAS Russia in their activities are also guided by the legal acts of the FAS Russia, which can be normative and individual (addressed to a specific subject, applied once and do not retain their effect after the specific relations provided for by this act have terminated). At the same time, we believe that this rule applies to letters sent to an indefinite circle of persons or addressed to a specific territorial body of FAS Russia or an economic entity operating on the territory of the respective territorial body of FAS Russia.

Arbitration courts considering disputes are not bound by the provisions of this kind of letters, since in accordance with Part 1 of Art. 13 of the APC, such letters are not included in the range of normative legal acts used in the consideration of cases.

Written explanations prepared at the request of business entities, as a rule, are addressed to specific applicants, therefore, dissemination by analogy of the judgments contained in them to all other cases by other business entities can be carried out only under their own responsibility.

Letters from the FAS Russia with explanations, recommendations, generalizations and analytical materials on the practice of applying antimonopoly legislation do not contain legal norms or general rules specifying regulatory prescriptions, and are not normative legal acts, regardless of whether an explanation was given to a specific applicant or an indefinite circle of persons. They are of an informational and explanatory and generalizing nature on the application of legislation and do not prevent interested parties from being guided by the norms of legislation in an understanding that differs from the interpretation set forth by the FAS Russia.

An analysis of judicial practice has shown that sometimes the parties to the proceedings substantiate their legal position, among other things, by referring to the explanations of the FAS Russia. However, the courts, considering cases, in the reasoning part of the judicial act, ignore the argument about the availability of clarifications on the disputed issue.

In another case, the cassation court recognized the correct position of the first instance court, which did not take into account the explanation of the antimonopoly authority, without explaining, however, in the text of the judicial act, on what grounds it believed so.

Sometimes the courts in the reasoning part of the judicial act refer to the explanations of the antimonopoly authorities, thus perceiving them as a worthy argument.

It is very rare that there are detailed positions of the courts, in which a judgment on the role and significance of the explanations of the FAS Russia is expressed. So, if the letter of FAS Russia was an answer to a question of a specific subject, while posted in the Reference Legal System "Garant", then, in the opinion of the Supreme Arbitration Court of the Russian Federation, the applicant's reference to it is untenable, since this letter is not of a regulatory nature, but is an explanation of specific question. In another case, the references of the parties in the arbitration process to the clarifications of the Ministry of the Russian Federation for Antimonopoly Policy and Support of Entrepreneurship were not taken into account by the court of appeal, since these clarifications contradict the regulations governing disputed relations.

In one of the cases, the court of appeal went further and, rejecting the reference of the applicants to the clarifications of the FAS Russia, set out in the letter, proceeded from the fact that the said letter was the subjective opinion of the head of the FAS Russia.

The position of the RF Armed Forces, which called the letter of the FAS RF dated 26.12.2005 No. AK / 19277 "On advertising of gambling and gambling establishments", a normative legal act, aimed at clarifying the grounds for prosecuting persons violating the Advertising Law, appears to be erroneous.

On the other hand, the FAS Russia, in accordance with clause 1 of the FAS Regulations, is an authorized federal executive body exercising the functions of monitoring compliance with antimonopoly legislation, by virtue of which its opinion can be used as the opinion of a specialist, whose involvement in the process with the aim of clarification of emerging issues belongs to the exclusive prerogative of the court (Articles 71, 82 of the APC).

Normativeness of letters from FAS Russia. The Federal Antimonopoly Service actively uses the legally stipulated opportunity to provide clarifications on the application of antimonopoly legislation by the federal antimonopoly body by sending letters of appropriate content.

These letters not only clarify the issues of the application by the antimonopoly body of the provisions of the legislation, but also fill the existing gaps, meaningfully approaching in their meaning to the normative legal acts. However, in the list of regulations that can be adopted by the FAS of Russia, established by clause 5.2 of the Regulation on the FAS, this type of documents is not specified.

In accordance with Part 2 of Art. 23 of the Law on the Protection of Competition, the federal antimonopoly body, inter alia, issues regulatory legal acts provided for by the Law on the Protection of Competition (clause 4); gives explanations on the issues of his application of antimonopoly legislation (clause 5); summarizes and analyzes the practice of application of antimonopoly legislation, develops recommendations for its application (clause 9).

At the same time, the FAS Russia has the right, by virtue of clause 6.3 of the Regulations on the FAS, to give explanations to legal entities and individuals on issues within its competence, and by virtue of clause 6.8 - to issue individual legal acts on issues within its competence, including orders, definitions, decisions, in cases stipulated by antimonopoly legislation, legislation on natural monopolies and legislation on advertising.

In clause 9 of the Resolution of the Plenum of the RF Armed Forces of November 29, 2007 No. 48 "On the practice of court consideration of cases on challenging regulatory legal acts in whole or in part", the essential features characterizing a regulatory legal act include: its publication in accordance with the established procedure by an authorized state authority , a local government body or an official, the presence in it of legal norms (rules of conduct), binding on an indefinite circle of persons, designed for repeated use, aimed at regulating public relations or changing or terminating existing legal relations.

In clause 1 of the section "Judicial practice in administrative cases" of the Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2011, approved by the Presidium of the RF Armed Forces on March 14, 2012, it is indicated that a legal act affecting the interests of an unlimited number of persons can be challenged as a normative legal act.

In the decision of the Supreme Arbitration Court of the Russian Federation dated March 29, 2012 No. VAS-16112/11, the letter of the FAS Russia dated May 23, 2011 No. IA / 19713 was invalidated, in which it was established that during the construction of a turnkey facility, the customer has the right to provide in the bidding documentation the need for the supply and installation of equipment inextricably linked with the construction object. This equipment was defined in the letter: it is understood as such equipment, "the delivery and installation of which is impossible subsequently without changing the design solutions of the construction object provided for by the project." In the event that construction work and equipment not related to the construction object were included in one subject of tenders, liability was provided in the form of issuing an order to annul the results of tenders, since such actions of the customer lead to an unreasonable limitation of the number of participants in the placement of orders.

In the specified decision of March 29, 2012, the Supreme Arbitration Court of the Russian Federation clarified that the resolution of the question of whether a particular act of a state authority is of a regulatory nature should be made regardless of its form, content and other conditions, for example, state registration, publication in an official publication ... The normative nature of a legal act is determined depending on the specific content of this act and the nature of the legal relationship over which the dispute arose, including whether it affects the rights and legitimate interests of an indefinite circle of persons. The contested act is of a normative nature, since it contains a concept, the definition of which is not established by federal legislation, and provides for conditions entailing legal consequences, designed for repeated application.

Thus, for the qualification of a legal act as normative, it is not formal signs (registration and publication) that are important, but essential ones (the content and nature of legal relations). And since the letter of the FAS Russia No. IA / 19713 is aimed at regulating the rights and legitimate interests of an indefinite circle of persons, insofar as it is a normative legal act.

In another case, it is indicated that the lack of registration of a legal act with the Ministry of Justice of Russia, official publication, as well as the publication of this act in the form of a letter does not in itself indicate that this document is not a normative legal act.

This position on the possibility of challenging the letters of the FAS Russia has also shown itself in relation to the performance of the state function of providing clarifications on the application of antimonopoly legislation by the federal antimonopoly body. By the decision of the Supreme Arbitration Court of the Russian Federation of 01.04.2013 No. VAS-181/13, the letter of the Federal Antimonopoly Service of 27.03.2008 No. AG / 6786 "On Market Analysis" and the attached Methodological Guidelines for Researching the State of Competition in the Wholesale Market of Motor Gasoline and Diesel fuel.

Effect of antitrust laws over time obeys general rules - acts are not retroactive and apply to those relations that arose after their entry into force.

Action of antitrust legislation in space. Norm h. 2 tbsp. 3 of the Law on the Protection of Competition establishes a rule on its extraterritoriality - the provisions of the Law on the Protection of Competition apply to agreements reached outside the territory of the Russian Federation between Russian and (or) foreign persons or organizations, as well as to their actions, if such agreements or actions affect the state of competition on the territory of the Russian Federation.

It doesn't matter where the anti-competitive behavior takes place. It is important that the influence on the state of competition in the territory of the Russian Federation is carried out.

The same idea is implemented in Art. 1222 Civil Code - the law of the country whose market is affected by such competition applies to obligations arising from unfair competition, unless otherwise follows from the law or the essence of the obligation.

Since the FAS Russia is an authorized federal executive body that performs functions, including monitoring compliance with antimonopoly legislation, and carries out its activities directly and through its territorial bodies, the FAS Russia has the right to initiate and consider cases of violation of the antimonopoly legislation, regardless of the place of occurrence. violation or finding the alleged infringer within the scope of the Law on the Protection of Competition established in Art. 3 of this law (clause 19 of the resolution of the Supreme Arbitration Court of the Russian Federation No. 30).

Action of the antimonopoly legislation by the range of persons. The provisions of the Law on Protection of Competition apply to practically all categories of entities: Russian commercial organizations; Russian non-profit organizations that carry out activities that generate income for them; individual entrepreneurs; individuals who are not registered as an individual entrepreneur, but carry out professional activities that generate income, in accordance with federal laws on the basis of state registration and (or) a license, as well as by virtue of membership in a self-regulated organization; natural persons acting as a member of a group of persons; individuals - consumers; foreign legal entities; federal executive bodies, state authorities of the constituent entities of the Russian Federation, local self-government bodies, other bodies or organizations performing the functions of these bodies; organizations involved in the provision of state or municipal services; state off-budget funds; Central Bank of the Russian Federation.

According to Art. 18 of the Federal Law of 09.07.1999 No. 160-FZ "On Foreign Investments in the Russian Federation", a foreign investor must comply with the antimonopoly legislation of the Russian Federation and prevent unfair competition and restrictive business practices, including by creating a commercial organization with foreign investments in the territory of the Russian Federation or a branch of a foreign legal entity for the production of any goods in high demand, and then self-liquidation in order to promote similar goods of foreign origin to the market, as well as through a malicious agreement on prices or on the distribution of markets for the goods, or on participation in tenders (auctions, tenders) ...

Individuals cannot influence competition due to their lack of economic competence, and therefore the restrictions provided for by law do not apply to them, with the exception of control over economic concentration and the implementation of activities as part of a group of persons.

See: URL: fas.gov.ru/international-partnership/ (date of access: 23.01.2014). Gorodov OA Decree. Op. P. 17.

See the resolution of the FAS of the Volga District of March 26, 2009 in the case A12-13537 / 2008.

See the definition of the RF Armed Forces dated November 29, 2006 No. 3-G06-12.

See resolution of the Federal Antimonopoly Service of the North Caucasus District of August 29, 2007 No. F08-5438 / 07 in case A63-592 / 2007-C7.

See the decision of the Supreme Arbitration Court of the Russian Federation of December 29, 2010 No. VAS-13888/10.