A feature of the Russian antimonopoly legislation is its formation in the conditions of transition from one economic system to another, as well as an unusually high level of concentration compared to most countries.
Antitrust Law Russian Federation includes the Constitution of the Russian Federation, the Law on Competition and Restriction of Monopolistic Activities in Commodity Markets, federal laws issued in accordance with it, decrees of the President of the Russian Federation, resolutions and orders of the Government of the Russian Federation. The purpose of antimonopoly regulation is to prevent, restrict and suppress monopolistic activity and unfair competition and to provide conditions for the creation and effective functioning of commodity markets.
The antimonopoly bodies on the territory of the Russian Federation are the federal antimonopoly body - the Ministry for Antimonopoly Policy (formerly - State Committee on antitrust policy). In accordance with the legislation, the federal body has the right to create territorial bodies and give them appropriate powers.
Let's consider the features of the Russian antimonopoly legislation in comparison with the US legislation.
Due to historical reasons, in the Russian Federation the greatest attention is paid to the regulation of abuses by an economic agent of its dominant position. At the same time, it is possible to withdraw goods from circulation in order to maintain a shortage and increase prices, to impose on the counterparty the terms of the contract that are unfavorable for him or not related to the subject of the contract, the inclusion of discriminatory conditions in the contract (price discrimination), the creation of obstacles to market entry and exit from the market to other firms, monopoly overpricing and underpricing, etc. This feature of the legislation is due to a high level of concentration, as a result of which a significant number of markets were under the control of one or several firms, and the practice of unbundling, which takes place in the United States, turned out to be inapplicable.
Secondly, the antimonopoly legislation of the Russian Federation distinguishes between vertical and horizontal agreements. Horizontal agreements that directly damage competition are immediately subject to legislation. At the same time, the concerted actions of competitors are considered illegal if the share of the parties to the agreement in total exceeds 35% on the market for a certain product. AT individual cases a cartel agreement between competitors is allowed if the agreed policy of the cartel participants leads to the saturation of the market with goods, the improvement of the quality of goods, the growth of the competitiveness of goods in the foreign market, or if the positive consequences of the cartel's activities exceed the losses from price rigidity.
The regulation of vertical ties is more liberal. It is allowed to use vertical agreements as a preventive means in case of the threat of abuse by the dominant firm of its position.
Thirdly, one of strengths Russian antimonopoly legislation is the definition of a dominant company through a functional characteristic - the ability to exert a decisive influence on the conditions for the circulation of goods on the market. This allows you to use this definition in one or another extended. At the same time, a firm cannot be recognized as dominant if the market share is less than 35%. With a share of 35 - 65%, the burden of proof of a dominant position lies with the antimonopoly authority, and with a share of more than 65% - with the firm. At the same time, market share matters for a long time.
Fourth, attitudes towards mergers in the Russian antimonopoly legislation are based on a quantitative criterion - a certain share of assets and the market. The book value of assets is the main parameter for applying to the antimonopoly authorities to obtain consent to the creation, reorganization and liquidation of firms. At the same time, the lower threshold for the size of the total book value assets of economic agents during the merger is set at 100 thousand minimum dimensions wages, and the total market share after the merger should not exceed 35%. In addition, mergers and acquisitions (acquisitions in Russian practice) may be allowed if their positive effects exceed the negative ones. The last point is most important in the light of the formation of vertically and horizontally integrated structures such as oil, gas and metallurgical holdings.
Finally, the main methods of regulation of monopolies in Russia are:
· state control over the creation, reorganization, liquidation of commercial organizations and their associations;
· state control over compliance with antimonopoly legislation in the acquisition of shares (stakes) in the authorized capital of commercial organizations and in other cases;
forced division (allocation) of commercial organizations and non-profit organizations engaged in entrepreneurial activities;
· price regulation of monopolistic behavior by setting a price limit, and limiting coefficients of price change, profitability limit, establishment.
Kamasheva Hope. Education in the Netherlands
In some states, antitrust laws include legal provisions to prevent dishonest competition against dishonest competitive fight in the markets. In a narrow sense, antitrust laws are directed against pure monopolies and large oligopolistic associations, as well as to prevent "dishonest" action violating norms business communication. The first stage in the development of antimonopoly regulation began in 1876 when agencies were set up in several US states to oversee prices and services. It was the United States that was characterized during this period by the greatest concentration of production. The second stage was associated with the adoption of 1890 US Congress First Act antitrust legislation - the Sherman Act against monopoly in trade and commercial activities, which has become the cornerstone of antitrust policy. The law prohibited any form of contracts (associations, conspiracies, agreements, etc.) aimed at limiting freedom trade; outlawed "unscrupulous methods" of eliminating competitors, considered as a criminal offense.
Violations of the Act were punishable by fines, damages, imprisonment, and the dissolution of the firm. AT Russia antitrust laws came into existence with the start of the transition to market economy. One of the first adopted in Russia normative acts in the field of antimonopoly regulation is the Law RF from 22 MR 1991"On Competition and Restriction of Monopolistic Activity in Commodity Markets". AT 1995 was accepted by him new edition. The law determines organizational and the legal framework for the prevention, restriction and suppression of monopolistic activity and unfair competition and introduces the concept of the dominant position of an economic entity, which can be recognized by the antimonopoly committee if the company's market share in a particular product is 65% or more.
The system of state regulation of the economy, formed in all industrial developed countries, as an obligatory element, provides for the creation of favorable conditions for the development of a competitive environment in the market for goods and services. At the same time, one of the main instruments that limit monopolistic activity, the basis that creates guarantees for the existence of competition, is antimonopoly legislation.
Antimonopoly legislation is a set of legal acts in countries with market economies aimed at maintaining a competitive environment, counteracting monopolism and unfair competition.
Russia's first antimonopoly normative act– The Law “On Competition and Restriction of Monopolistic Activity in Commodity Markets” was adopted on March 22, 1991 in subsequent editions.
The law was the basis for the formation of antimonopoly legislation in the Russian Federation, the preparation and adoption of relevant regulatory documents. Such documents include the Rules for Considering Cases of Violation of Antimonopoly Legislation (approved by order of the SCAP of Russia dated May 12, 1994 No. 53), the Law on Amending the Criminal Code of the Russian Federation and the Code of the Russian Federation on administrative offenses.
The condition for freedom of competition is Art. 8 of the Constitution of the Russian Federation, which gives legal guarantees of the unity of the economic space, free movement of goods, services and financial resources, support for competition and freedom of economic activity. Smooth implementation entrepreneurial activity and the prohibition of economic activity aimed at monopolization and unfair competition is enshrined in Art. 34 of the Constitution of the Russian Federation, and art. 74 of the same Constitution prohibits the establishment of customs borders and fees, as well as other obstacles that impede the free movement of goods and services.
The system of normative legal acts regulating competition and monopolistic activity in the market of goods and services includes separate norms of the Civil Code of the Russian Federation. So, paragraph 1 of Art. 10 does not allow the use civil rights in order to limit competition, as well as abuse of a dominant position in the market, and paragraph 1 of Art. 1033 under a commercial concession agreement provides for the possibility to oblige the user not to compete with the right holder in the territory covered by the agreement. If, however, it is established that these restrictive conditions are contrary to the antimonopoly legislation, then at the request of the antimonopoly body they may be declared invalid.
A separate block is made up of acts on State Register enterprises-monopolists and on special regulation of their activities. The legal foundations of antimonopoly are contained in the Laws on Enterprises and Entrepreneurial Activity, on the Arbitration Court, the Arbitration Process, in the regulatory documents governing the privatization process.
The rules of law, designed to strengthen the freedom of competition and limit the omnipotence of monopolies, are also contained in federal laws: July 18, 1995 "On Advertising"; dated July 19, 1995 "On natural monopolies"; dated February 7, 1992 as amended on January 9, 1996 "On the protection of consumer rights", dated June 29, 1999 "On the protection of competition in the market financial services»; dated April 14, 1998 “On measures to protect economic interests of the Russian Federation in the implementation of foreign trade in goods”.
Among the aforementioned antimonopoly laws, the main one is the Law on Competition, which determines not only the organizational, but also the legal framework for preventing, restricting and suppressing monopolistic activities and unfair competition and is aimed at ensuring appropriate conditions for the creation and effective functioning of commodity markets.
The scope of this Law is very broad, that is, its rules apply to relations that affect competition in the commodity markets in the Russian Federation, the participants of which are Russian and foreign legal entities, federal authorities executive authorities, executive authorities of the constituent entities of the Russian Federation, local governments, as well as individuals, including individual entrepreneurs.
The law does not apply to relations related to objects of exclusive rights, except in cases where agreements related to their use are aimed at restricting competition. Its actions do not apply to relations related to monopolistic activities, unfair competition in the markets. valuable papers and financial services.
Regulatory legal basis regulation and control of activities natural monopolies constitute laws and other normative acts adopted both by the federal state authorities and the constituent entities of the Russian Federation on issues that are under their exclusive jurisdiction or joint jurisdiction with the Russian Federation.
The decisive role is assigned to the Federal Law of the Russian Federation “On Natural Monopolies”, adopted on July 19, 1995, which laid the legal foundations for regulating and controlling the activities of natural monopolies in the Russian Federation. In addition, regulations have been legal acts regulating the relations developing in separate spheres of natural monopolies. This, in particular, the Federal Law of the Russian Federation "On railway transport in the Russian Federation” dated January 10, 2003 1 ; Federal Law of the Russian Federation "On Communications" dated February 16, 1995 2; Federal Law of the Russian Federation "On Energy Supply" dated March 15, 1996 3; Federal Law of the Russian Federation "On state regulation tariffs for electric and heat energy in the Russian Federation” dated March 10, 1995 4 ; Federal Law of the Russian Federation "On gas supply in the Russian Federation" dated 31.03. 1995
The functions of regulation and control of the activities of subjects of natural monopolies in accordance with the Law "On Natural Monopolies" are carried out by the federal bodies of the Russian Federation, which have the right to create their own territorial bodies and empower them within their competence. In accordance with this Decree of the President of the Russian Federation of November 29, 1995 No. 1194, the Federal energy commission Russian Federation 1, dated February 26, 1996 No. 276 - Federal Service of the Russian Federation for the Regulation of Natural Monopolies in Transport 2 , Decree of the Government of the Russian Federation of November 10, 1996 No. 1343 approved the regulation on the Federal Service of the Russian Federation for the Regulation of Natural Monopolies in the Field of Communications 3 . However, in the structure of federal executive bodies, approved by Decree of the President of the Russian Federation of September 22, 1998 No. 1142, federal Service of Russia for the regulation of natural monopolies in the field of communications and the federal service of Russia for the regulation of natural monopolies in transport, and their functions were transferred to the Ministry of the Russian Federation for Antimonopoly Policy and Entrepreneurship Support.
The regulatory bodies of natural monopolies not only form and maintain a register of subjects of natural monopolies, but can also apply to them such methods of influencing their activities as price regulation, carried out by setting prices (tariffs) or their ceiling level; determination of consumers subject to mandatory service and (or) establishment minimum level their provision in case of impossibility to meet in full the needs for goods produced (sold) by the subject of natural monopoly, taking into account the need to protect the rights and legitimate interests of citizens, ensure the security of the state, protect nature and cultural values.
Thus, natural monopolies are under the control of two federal structures - antimonopoly bodies and special bodies regulating the activities of natural monopolies.
Antimonopoly regulation in the sphere of financial services is regulated by the Federal Law of the Russian Federation No. 117-FZ “On Protection of Competition in the Financial Services Market” 4 . In the Law "On Protection of Competition in the Financial Services Market" in Art. 5 for the first time defines the concept of the financial services market as a sphere of activity of financial organizations on the territory of the Russian Federation or its part, determined based on the place where financial services are provided to consumers.
At the end of the 20th century, our country embarked on the path of transition from a planned economy to a market economy, an integral part of which is competition as a necessary condition for the development of entrepreneurial activity. Today, we understand that the fiercer the competition in the domestic market, the better prepared national firms are to fight for markets abroad, and the more advantageous are consumers in the domestic market both in terms of prices and product quality. After all, competitive products should have such consumer properties that would favorably distinguish them from similar products of competitors. It is competition that turns the country's economic system into a self-regulatory apparatus; it is not for nothing that Adam Smith called it the "invisible hand of the market."
Quite recently, in the centrally planned economy of our country, such concepts as competition and monopoly were absolutely inapplicable and were banned. It was believed that contemporary issues The competition that takes place in a market economy is of no practical importance for the activity of socialist enterprises, since the methods of the capitalist economic system are alien to them.
Competition, for example, was defined as "an antagonistic struggle between private commodity producers for the most favorable conditions for the production and sale of goods, which is inevitably accompanied by anarchy and disaster, is carried out by cruel and predatory methods, and leads to devastating economic and social consequences" 1 .
At first glance, such a characterization of competition may seem correct, because, as F. Hayek figuratively noted, “competition is often objected to on the grounds that it is “blind”. However, the author notes, it is useful to recall that the ancients depicted the goddess of justice with a blindfold, which served as a symbol of her impartiality and justice. Competition, perhaps, has little in common with justice, but they have one common virtue - both of them "do not look at faces" 1 .
“In a developed market,” writes S.E. Zhilinsky, “competition is a constant race without a finish line, when you can’t stop, take a break from exhausting rivalry” 2 .
The first attempt to create antimonopoly legislation in Russia was made as early as 1908. The Sherman Act in the United States was taken as a model. However, organizations of Russian entrepreneurs met the draft law with hostility and managed to thwart its adoption.
As a result of transformations in the Russian Federation, the foundations of state monopoly have been destroyed, the nature of monopolization, and the structure of markets have changed. Deficit was eliminated for certain commodity groups, and the first competitive markets emerged.
The legal basis for the fight against monopolies and unfair competition appeared in Russia only in 1991, when the Law
"On Competition and Restriction of Monopolistic Activity in Commodity Markets".
This law states that:
1) the actions of a firm occupying a dominant position in the market are prohibited if they result in a significant restriction of competition and infringement of the interests of other market participants, including individual citizens;
2) monopoly collusion on prices, withdrawal of goods from the market to maintain a shortage, division of the market, attempts to restrict access to the market of competing firms are prohibited;
3) firms engaged in unfair competition, in particular: disseminating false information about the goods and firms of their competitors in order to scare away buyers from them, are subject to punishment; deceiving buyers about the real properties and quality of their product; undeservedly belittling in their advertising the quality of their competitors' products; illegally using other people's names and trademarks for their products, as well as copying the shape, packaging and external design of their competitors' products; stealing from their competitors their trade secrets, as well as technical, production and trade information;
4) control over the activities of monopolists is carried out by the State Committee for Antimonopoly Policy (Antimonopoly Committee);
5) in case of violation of the requirements of the law, the Antimonopoly Committee has the right to terminate any economic contract, demand that the monopolist compensate for the losses caused by its actions, and also impose a fine on the guilty company in the amount of up to 1 million rubles.
The law establishes the concept of "dominant position", that is, the exclusive position of an economic entity or several economic entities in the market of a certain product that does not have a substitute, or interchangeable goods, enabling it to exert a decisive influence on competition, hinder access to the market for other economic entities or otherwise restrict their freedom of economic activity. The position of such a firm, whose market share is 65% or more, can be recognized as dominant. A list of shares has been established that are treated as abuse of dominant position. These include the withdrawal of goods from circulation in order to create a shortage, the imposition of conditions that are unfavorable to the counterparty or not related to the subject of the contract, the creation of obstacles to competitors' access to the market, and the violation of the established pricing procedure. Collusions on the prices of goods and services, on prices at auctions and tenders, on the division of the market, on the restriction of access to the market are recognized as agreements of economic entities that restrict competition.
The law establishes state control over the creation, merger, accession, transformation, liquidation of business entities, as well as over compliance with antimonopoly laws when acquiring shares, shares, stakes in the authorized capital of an enterprise, forced separation of business entities. The liability of enterprises and officials for violating antimonopoly legislation is provided for.
This law is still in effect today.
In 1995, domestic firms were given the right to initiate cases on charges of dumping in order to oust competitors from Russian market. This was the result of a set of methods for combating monopolism that is gradually being improved in our country.
The antimonopoly authorities of Russia will have to work in this direction for a long time until they find the most effective ways specifically for our country to support competition and limit monopolistic manifestations. After all, the first attempts to regulate the activities of monopolies, undertaken in our country in 1992-1993, did not bring much success. It became clear that a special structure Russian economy, which we discussed above, reduces the effectiveness of methods that work quite successfully in countries with developed economic systems market type.
That is why in the spring of 1994 the government approved a completely new model antimonopoly policy proposed in the "State Program of Demonopolization of the Economy and Development of Competition in the Markets of the Russian Federation". From now on, firms dominating the market in Russia can be classified into one of three categories:
1) natural monopolies;
2) allowed monopolies;
3) temporary monopolies.
Natural monopolies in our country will now be considered industries or firms that have two characteristics:
a) they produce products or services that cannot be imported from abroad or brought from other regions of the country;
b) they operate in a market where the creation of a competitive environment by increasing the number of manufacturing firms is not economically efficient.
Permitted monopolies will be industries and firms that provide for the needs of the state in defense and security or produce certain specific types of products, where a reduction in the number of manufacturing firms makes it easier for the state to control the quality and sales of these products.
This category includes the defense industry, as well as firms producing liquor and tobacco products (excise goods that require licensing) and medicines.
Temporary monopolies will be recognized as branches and firms that turned out to be dominant producers in the markets of their goods due to the policy of consolidation of enterprises pursued earlier in the country, and not due to the greater efficiency of their work.
It is temporary and natural monopolies that will now be the subject of special attention of the Antimonopoly Committee of the Russian Federation and the government as a whole. The economic practice of recent years has convincingly shown that it is precisely such firms and industries that influence the development domestic economy most negatively, it is they who bear a large share of the blame for spinning the “flywheel” of inflation.
An example can be given of the rise in prices for products or services of natural monopolists in comparison with prices in the industry as a whole. At the same time, the accelerated price growth in natural monopoly industries cannot be attributed to an increase in the cost of the resources they consume.
So, in the first quarter of 1994, the costs of enterprises
ties increased due to rising prices:
for electricity - 1.5 times,
on material resources- 1.8 times,
for transport operations - 2.5 times.
But at the same time, signalmen increased the tariffs for their own services by 2.7 times, which allowed them to increase their salaries accordingly.
to its employees by 2.4 times (much more than in other industries).
As a result, the delivery of newspapers and magazines in Russia began to cost more than the actual subscription to them, and many press organs were forced to introduce such a strange form of distribution of their publications as "subscription with receipt directly from the editorial office."
Other natural Russian monopolies carry out a similar practice. Because of this wage, for example, in the electric power industry is now 4-5 times higher than the industry average (depending on the region of the country and the pricing policy of the local energy system operating there). Approximately the same is higher than the average salary in railway transport, and communications workers are only slightly inferior in the salary race.
But how will Russia fight its natural and temporary monopolies?
As far as natural monopolies are concerned,
regulation of their activities, it is envisaged to create for 3 years special federal agencies. These agencies have the right to establish for natural monopolists:
List of consumers they are obliged to serve;
Price level and structure;
Plan for investing in the expansion of production.
In other words, in industries with a natural monopoly, the freedom of market behavior will be limited, and state economic management will replace it.
It was on this basis that the Russian government in October 1995 took, for example, a decision to "freeze" prices (that is, prohibit their increase) in natural monopoly industries until the end of the year. Gas prices freeze
and electricity, as well as railway tariffs and tariffs for
pumping oil and oil products through pipelines.
In relation to temporary monopolies, a different policy will be pursued. To weaken their power over the market, the state intends to implement the following measures:
Prohibit the formation of financial and industrial groups capable of seizing a dominant position in the local commodity markets of individual regions of the country;
ban,
already existing financial and industrial groups
to include in its composition enterprises that occupy a dominant position in the local commodity markets of certain
regions
countries;
Encourage the import of interchangeable goods from neighboring regions, as well as countries near and far abroad, in order to weaken the dominance of the monopolist in the market;
Carry out forced disaggregation of monopoly firms with the creation on their basis of several independent and competing firms;
Encourage new construction, as well as the creation of small firms, if this can help reduce the degree of market monopolization.
At the same time, the most effective method for solving the problem of improving the competitive situation in the domestic markets of Russia is their maximum opening to the goods of foreign firms. The only trouble is that this “treatment procedure” is extremely difficult to dose, and its consequences are ambiguous. The fact is that domestic enterprises are still completely losing the competition with foreign competitors in terms of the “price-quality” ratio when comparing similar goods (Russian goods, in terms of a comparable level of quality, are more expensive than foreign ones).
Therefore, the invasion of the domestic market of large quantities of foreign goods leads to the fact that domestic firms generally “lose the market” (this happened, for example, with Russian manufacturers of televisions and tape recorders after the appearance of large quantities of electronics from Southeast Asia in stores).
Of course, the appearance on the market of better and relatively cheaper goods is beneficial for buyers. And they (acting quite rationally) will buy foreign products. But the state cannot ignore the fact that such a development of events will lead to the collapse of not only individual Russian firms, but entire industries. national economy. And this threatens with an explosion of unemployment, for the absorption of which the country does not yet have the means.
As a result, the Russian government has to constantly act on the principle of "one step forward - two steps back": either open the domestic market for the supply of foreign goods in order to pacify domestic monopolists, then again "close the door" in order to prevent the complete death of domestic industry.
It is because of this, for example, in Russia for last years the conditions for the import of foreign cars that compete with domestic Zhiguli, Moskvich and Volgami have changed so often. The government either increased state duties on imports of cars, or reduced them, which, accordingly, caused a relative rise in price or reduction in price of foreign cars in comparison with the products of the domestic automotive industry.
The problem of monopolies in Russia has not yet been resolved, and its rapid solution in short term not expected.
The problems of legal protection of competitive relations have taken their rightful place in domestic legal science only in the last ten or fifteen years, since this is a relatively new legal phenomenon in our system of law. In this vein, some scholars suggest using the term "competition law". For example, K.Yu. Totiev understands the antimonopoly law as a system of federal regulatory legal acts that regulate the activities of subjects of competition and monopolies in order to protect private and public interests on the basis of Part 3 of Art. 55 of the Constitution of the Russian Federation 1 . According to the scientist, the term "antitrust law" emphasizes the ultimate and positive goal legal regulation– creation of conditions for the development, support and protection of competition 2 .
Of great interest is the point of view of S.A. Parashchuk, who, using the term "legislation on competition and monopoly", divides the latter into acts of competition legislation and acts of legislation on state and natural monopolies. At the same time, the antimonopoly legislation, according to the scientist, in turn, includes regulatory legal acts that traditionally contain two main groups of legal norms: antimonopoly law norms and unfair competition law norms. According to the author, in the conditions of insufficient development of competitive relations in domestic markets there is a need to single out yet another, third group of norms contained in acts of antimonopoly legislation aimed primarily at developing and stimulating competitive relations themselves 3 .
S.A. Parashchuk emphasizes that the traditional areas of competition law (ie, antitrust law and unfair competition law) are not always clearly distinguished from one another. Indeed, Russian laws on competition in commodity and financial markets classify the rules on unfair competition as antimonopoly legislation, which, according to the scientist, is very controversial, since these areas of legal regulation of competition have significant differences in tasks, subjects of regulation and other grounds 1 . Thus, antimonopoly law and unfair competition law are independent areas of competition law, which was not taken into account by the Russian legislator.
There are different points of view on the composition of antimonopoly legislation. All of them can be divided into two groups: "antimonopoly law in the narrow sense" and "antimonopoly law in the broad sense" 2 .
Antimonopoly legislation in the narrow sense is used to refer to regulatory legal acts, a list of which is given in Art. 1.1. and 2 of the Law on Competition: the Constitution of the Russian Federation; named Law; federal laws regulating relations related to monopolistic activity and unfair competition in the financial services markets; Decrees of the President of the Russian Federation that do not contradict the Law on Competition and the named federal laws; Decrees of the Government of the Russian Federation adopted on the basis of and in pursuance of the Law on Competition, federal laws and Decrees of the President of the Russian Federation.
In this regard, V.I. Eremenko rightly notes that the normative legal acts adopted by the federal antimonopoly body are cut off from the antimonopoly legislation, in connection with which the legality of the latter can be questioned.
The antimonopoly legislation in a broad sense, in addition to the norms of the above acts, includes all the norms on the development (protection) of competition and the regulation of monopolies contained in federal laws and other normative acts. So, for example, A.N. Varlamova considers competition law as legislative acts that regulate competitive relations (competition law itself) and other acts containing antimonopoly and competitive norms. The latter, in her opinion, include: partly legislation on pricing, legislation on foreign entrepreneurs, tax law, legislation on small business and other legislation of an entrepreneurial orientation, one way or another affecting the creation and position of competitive economic entities 1 .
Antimonopoly legislation currently consists of the following acts: the Constitution of the Russian Federation, which proclaims and guarantees support for competition; the Civil Code of the Russian Federation, which creates the basis for the free development of entrepreneurship and the development of competition and at the same time prohibits its restriction; the Law on Competition and other normative acts of various legal levels, in which competition is considered as a direct object of legal regulation; normative acts defining the rights and obligations of the bodies responsible for the development of competitive relations; normative acts regulating the activity of organizations-monopolists; normative acts regulating the activity of natural monopolies; normative acts aimed at the demonopolization of the economy, primarily State program demonopolization and development of competition in the markets of the Russian Federation; provisions of normative acts of other areas of legislation that affect the development of competitive relations - legislation on the protection of consumer rights, on pricing, customs regulation, etc.; normative acts that create the basis for the development of entrepreneurial activity and indirectly influence the development of competitive relations (legislation regulating the position of new structures: FIGs, trading houses, new forms of trade, as well as small businesses); acts of different legal levels that form the basis for the practical application of certain provisions of the Law on Competition 2 .
In the hierarchical ladder of normative legal acts, the top position is occupied by the Constitution of the Russian Federation, which regulates the most important, fundamental public relations in the field of competition between insurance companies. According to Art. 34, every person in the Russian Federation has the right to freely use his abilities and property for entrepreneurial and other economic activities not prohibited by law, however, such economic activity which is aimed at monopolization and unfair competition. One of the foundations of the constitutional order of our state is the guarantee of support for the unity of the economic space, free movement of goods, services and financial resources, competition, freedom of economic activity (clause 1, article 8).
The core of Russian antimonopoly legislation is the Law on Competition, adopted on March 22, 1991, with subsequent amendments and additions. With regard to the scope of this Law, it applies to relations that affect competition in the commodity markets in the Russian Federation, in which Russian and foreign legal entities, federal executive authorities, state authorities of the constituent entities of the Russian Federation, local authorities, other endowed functions or rights of these authorities, bodies or organizations, as well as individuals, including individual entrepreneurs. The law is also applied in cases where actions and agreements performed or entered into by these persons outside the Russian Federation lead or may lead to restriction of competition or entail other negative consequences in the markets in the Russian Federation (clause 1, article 2).
Relations related to monopolistic activities and unfair competition in the financial services markets are excluded from the scope of the Law, except for cases when the relations developing in these markets affect competition in the commodity markets. These relations are regulated by other federal laws (clause 3, article 2), that is, the Federal Law on the Protection of Competition in the Financial Services Market.
The federal law on the protection of competition was adopted with a huge delay - only in 1999, and on December 30, 2001 it was amended.
Ensuring the protection of competition acts as one of the mechanisms that support and ensure the efficiency of the economy of any country in all areas.
The economy of competition recognizes the rivalry of the subjects of market relations for Better conditions and the results of commercial activity, that is, a civilized legalized form of the struggle for existence and one of the most effective mechanisms for selection and regulation in a market economy.
And although competition is a necessary condition for the development of entrepreneurial activity, a means of regulating the main economic processes, satisfying the interests of consumers, it should be recognized as legitimate the position that competition is not capable of self-regulation to the proper extent. Therefore, in order to ensure the optimal functioning of the market, further improvement of Russian competition legislation is necessary.
Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" introduced the legal concept of "competition" - the rivalry of economic entities, in which the independent actions of each of them exclude or limit the possibility of each of them in unilaterally impact on general terms and Conditions circulation of goods on the relevant commodity market (clause 7, article 4 of the Law).
In order to protect economic entities from unfair competition, the state provides for a set of measures aimed at ensuring conditions for market competition. Thus, the state antimonopoly regulation and control includes a set of economic, administrative and legislative measures that are within the competence of the state and are aimed at providing conditions for market competition, as well as at preventing excessive monopolization of the market, which would threaten the normal functioning of market mechanism. The aforementioned Law No. 135-FZ defines unfair competition as any actions of business entities (groups of persons) that are aimed at obtaining advantages in carrying out entrepreneurial activities, contradict the legislation of the Russian Federation, business practices, the requirements of integrity, reasonableness and fairness, and have caused or may cause losses other business entities - competitors have either caused or may cause damage to their business reputation (clause 9, article 4 of the Law).
The antimonopoly legislation of the Russian Federation is based on the provisions of the Constitution of the Russian Federation, the Civil Code of the Russian Federation, federal laws. Relations that are related to the protection of competition, including the prevention and suppression of monopolistic activities and unfair competition, are also 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.
The starting points in this case are the provisions of the Constitution of the Russian Federation, according to which the unity of the economic space, free movement of goods, services and financial resources, support for competition, freedom of economic activity (Article 8) are guaranteed in the Russian Federation, economic activity aimed at monopolization and unfair competition (clause 2, article 34), the Russian Federation is in charge of establishing the legal foundations of the single market, that is, the federal level of antimonopoly legislation is established (clause “g” of article 71), the establishment of customs borders is not allowed on the territory of the Russian Federation, duties, fees and any other obstacles to the free movement of goods, services and financial resources (paragraph 1 of article 74).
The Civil Code of the Russian Federation establishes the equality of participants in the relations it regulates, the need for unhindered exercise of civil rights, ensuring the restoration of violated rights, and their judicial protection. Thus, the Plenum of the Supreme Arbitration Court of the Russian Federation in Resolution No. 30 of June 30, 2008 “On Certain Issues Arising in Connection with the Application of Antimonopoly Legislation by Arbitration Courts” indicated that the norms of the Civil Code of the Russian Federation on which antimonopoly legislation is based include, in particular, article 1 of the Civil Code of the Russian Federation, which establishes a ban on the restriction of civil rights and freedom of movement of goods, except in cases where such a restriction is introduced by federal law (in this case, the Law on Protection of Competition is one of the laws imposing appropriate restrictions), and article 10 of the Civil Code of the Russian Federation , which prohibits the use of civil rights to restrict competition and abuse of dominant market position.
Federal Law No. 135-FZ of July 26, 2006 “On Protection of Competition” defines the organizational and legal framework for protecting competition, including prevention and suppression of monopolistic activities and unfair competition, prevention, restriction, and elimination of competition by authorities. The Law on Protection of Competition formulates the requirements for economic entities when they enter into civil law relations with other participants in civil turnover. A major role in regulating the procedures for protecting and supporting competition belongs to the Government of the Russian Federation and the acts issued by it, among which we can single out Resolution of the Russian Federation of July 5, 2010 No. insurance or reinsurance activities”, which recognized that although agreements between economic entities that lead to restriction of competition are prohibited, under certain conditions they can be recognized as acceptable. Cases of admissibility of agreements between insurers operating in the same product market on the implementation of joint insurance or reinsurance activities (general exceptions) have been established.
Also, attention should be paid to the Decree of the Government of the Russian Federation of April 1, 2010 No. 208 “On approval of the Regulations on the preliminary approval of the features of the formation of the starting price for products when they are sold on the commodity exchange”, which establishes the procedure for preliminary coordination with the antimonopoly authority of the features of the formation of the starting price on products when they are sold on a commodity exchange. An order for such approval is issued to an economic entity based on the results of consideration of a case on violation of antimonopoly legislation.
And, for example, Decree of the Government of the Russian Federation of November 2007 No. 769 “On agreements between the executive bodies of state power of the constituent entities of the Russian Federation and business entities on reducing and maintaining prices for certain types of socially significant food products of prime necessity” established that such agreements should were concluded for a period no later than April 30, 2008. But in practice, this model of relations between government and business turned out to be more in demand, and the FAS recommendations began to serve as a guideline for determining the mutual obligations of the parties in agreements of this kind. Such agreements include agreements on limiting trade markups for essential foodstuffs with leading network companies, agreements on setting a maximum selling price for essential foodstuffs, etc. As an example, we can refer to the agreement concluded by the Administration of the Tver Region with the Ritm 2000 company, which was designed to ensure the further development of the leading trading network in the region, Tverskoy Kupets, which includes not only investment issues for business expansion, but also issues of social responsibility, which involved the sale of Tver goods of good quality at an economically justified price, with the obligatory presence of a social assortment of goods.
In order to implement the provisions of the antimonopoly law, Decree of the Government of the Russian Federation of June 26, 2007 No. 409 “On Approval of the Conditions for Recognizing the Dominant Position of a Credit Institution and the Rules for Establishing the Dominant Position of a Credit Institution” defines the Conditions for Recognizing the Dominant Position of a Credit Institution. The Law "On Protection of Competition" establishes that the dominant position of an economic entity) whose share in the market of a certain product does not exceed 35% cannot be recognized, except for financial organization(Article 5), for which the lower thresholds, excluding the possibility of recognizing its dominant position. The position of a financial organization whose share does not exceed 10% in the only commodity market in the Russian Federation or 20% in the commodity market circulating in which the goods are also circulated in other commodity markets in the Russian Federation cannot be recognized as dominant.
The position of a credit organization in the commodity market is recognized as dominant, which gives this organization the opportunity to exert a decisive influence on the general conditions for the circulation of services in the relevant market, and (or) eliminate other economic entities from the commodity market, and (or) hinder their access to the commodity market. Dominant position in the commodity market of several credit organizations, included in the group of persons operating within the boundaries of the commodity market, is established in aggregate for the group of persons.
The following subordinate regulatory legal acts of the antimonopoly body are important for ensuring the protection of competition:
Order of the Federal Antimonopoly Service of Russia dated April 28, 2010 No. 220 “On approval of the procedure for analyzing the state of competition in the commodity market”, which updated the procedure for analyzing the state of competition in the commodity market. Such an analysis is necessary to establish the dominant position of an economic entity when considering cases of violation of antimonopoly legislation, state control for economic concentration, maintaining the register of economic entities. It is also carried out when resolving issues of forced separation (allocation) of organizations.
Order of the Federal Antimonopoly Service of Russia dated February 24, 2010 No. 89 "On approval of the administrative regulations of the Federal Antimonopoly Service for the execution state function to conduct audits of compliance with the requirements of the antimonopoly legislation. This order approved the administrative regulations of the FAS Russia, which determine the timing and sequence of actions (administrative procedures) during inspections on issues within the competence of the Service.
The procedure for the implementation of the following administrative procedures is regulated: making a decision to conduct an audit; preparation for testing; examination; drawing up an act based on its results; familiarization with it of the subject of verification; taking action. The first sections of the inspection plans are posted on the official websites of the FAS Russia and its territorial bodies on the Internet. General term verification is not more than 3 months. Inspections are carried out on-site. Based on the results of inspections, the Service draws up acts of the persons being inspected. The procedure for appealing against actions (inaction) of the Service during the audit has been determined.
Order of the Federal Antimonopoly Service of Russia dated April 17, 2008 No. 129 “On approval of the form for submitting information to the antimonopoly authority when applying with petitions and notifications under Art. 27-31 federal law"On Protection of Competition". Due to the need for state control over economic concentration, the creation of large commercial organizations (including through mergers, acquisitions) is carried out either with the prior consent of the FAS Russia, or subject to mandatory notification to the FAS Russia. In some cases, the consent of the FAS Russia is required for the acquisition of shares, shares in the authorized capital, property commercial organization. At the same time, clause 3.30 of the Administrative Regulations of the FAS Russia establishes that if not all of the specified documents and information are submitted to the antimonopoly authority, the antimonopoly authority notifies the applicant within five working days that the application (notification) is not considered submitted with an indication of the documents not submitted and information. Thus, for example, the Federal Arbitration Court of the Moscow District found that the FAS RF had rightfully returned the notice submitted by CJSC Stroykapitalinvest, which did not comply with the requirements of the current legislation (Decision No. KA-A40/1195-11 dated March 9, 2011 in case No. A40- 99162/10-139-535).
One can also cite a number of other acts adopted by the authorized bodies, but nevertheless, all of the above confirms that the currently existing system of antimonopoly regulation includes both federal legislation and other regulatory documents of the authorized bodies. However, it should be noted that by-laws often only clarify and duplicate federal legislation, which leads to certain difficulties in the process of law enforcement, and the competition law itself needs to be improved. This circumstance is repeatedly referred to by the Chamber of Commerce and Industry of the Russian Federation, which, in the Concept for the Development of Legislation of the Russian Federation for the period 2008-2011, in the Concept for the Development of Legislation of the Russian Federation for the period up to 2012, proposes to improve the legal basis for entrepreneurial activity, emphasizing that the current system antimonopoly regulation includes not only federal legislation, but also a number of guidelines, orders and other regulatory documents developed by the antimonopoly authority, which clarify and often duplicate federal legislation. The concepts include the most problematic issues and offer a list of changes to the antimonopoly legislation to address them, a list of draft legislative acts to be developed and adopted, with which one cannot but agree.
Speaking about the protection of competition, one cannot fail to mention responsibility for violations of antimonopoly legislation, to which the Law "On Protection of Competition" includes the abuse of a dominant position by an economic entity, which is expressed in the action (inaction) of an economic entity occupying a dominant position, the result of which is or may be the prevention of , restriction, elimination of competition and (or) infringement of the interests of other persons (Article 10). For example, the Federal Arbitration Court of the East Siberian District refused to invalidate the decisions of the antimonopoly service, since the antimonopoly body proved that the enterprise occupies a dominant position in the market for subscription and delivery of printed periodicals, and the fact that the enterprise evaded the conclusion of the corresponding agreement (decree of 25 September 2008 No. А74-953/2007-Ф02-9325/2007).
Also, violations of the antimonopoly law include agreements or concerted actions of economic entities that restrict competition (Article 11 of the Law). Article 8 of the Law "On Protection of Competition" defines that the concerted actions of economic entities are their actions in the commodity market, which are known in advance to each of these persons, their result corresponds to the interests of each of them, they are caused by the actions of other economic entities and are not a consequence of circumstances that equally affect all economic entities operating in the relevant commodity market. Circumstances that equally affect all economic entities operating in a particular product market, this rule, in particular, includes changes in regulated tariffs, prices for raw materials used to produce goods; changes in prices for goods on world commodity markets; a significant change in demand for a product for at least one year or during the existence of the relevant product market, if such a period is less than one year. At the same time, in order to recognize the actions of economic entities as coordinated, it is necessary that these actions were committed by the indicated persons on the same commodity market; were not the result of circumstances that equally affect all economic entities operating in this product market; were known in advance to each of the economic entities and their result corresponded to the interests of each of these entities.
Paragraph 2 of Resolution No. 30 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2008 “On Certain Issues Arising in Connection with the Application of Antimonopoly Legislation by Arbitration Courts” clarifies that when analyzing the question of whether the actions of economic entities in the commodity market are coordinated, it should be borne in mind that the consistency of actions can be established even in the absence of documentary evidence of the existence of an agreement on their commission. The conclusion about the presence of one of the conditions to be established for recognizing actions as concerted, namely: each of the economic entities knew in advance about the commission of such actions, can be made based on the actual circumstances of their commission. For example, the consistency of actions, along with other circumstances, may be evidenced by the fact that they are committed by various market participants in a relatively uniform and synchronous manner in the absence of objective reasons.
In a specific case, the appellate instance upheld the decision of the Arbitration Court of the Stavropol Territory dated 06/15/2011, which recognized as legitimate the instructions of the FAS Office for the Stavropol Territory, No. 109 dated 12/22/2010 and No. Mukomol” and OJSC “Makfa” for violation of the requirements of paragraphs 1 and 6 of part 1 of article 11 of the Federal Law of July 26, 2006 No. 135-FZ (resolution of the Sixteenth Arbitration Court of Appeal of September 27, 2011 No. 16AP-2230/11). As follows from the materials of the case, by the Office of the Federal Antimonopoly Service for the Stavropol Territory on the basis of the instruction of the Federal Antimonopoly Service of Russia dated July 30, 2010 No. АЦ/24579 “On strengthening the work of the territorial bodies of the Federal Antimonopoly Service of Russia to control food commodity markets in drought conditions”, as well as the instruction of the Federal Antimonopoly Service of Russia dated August 13 .2010 No. IA / 3352-PR "On measures to strengthen antimonopoly control over rising prices for agricultural products and processed products" and instructions from the Prosecutor's Office of the Stavropol Territory, control measures were taken against enterprises engaged in the production and sale of flour in the Stavropol Territory. In the course of checking the activities of OAO Mukomol, the antimonopoly authority revealed the fact of the conclusion of a supply agreement between the latter and OAO Makfa, in accordance with which OAO Mukomol undertook to supply OAO Makfa with flour in the assortment, quantity at a price and within the time agreed in the contract. Based on the results of the analysis of the price dynamics of the products supplied under this agreement, it was revealed that the parties did not set unreasonably low prices under the specified agreement, while maintaining significantly higher prices for other buyers. These data served as the basis for the antimonopoly body to initiate a case on violation of antimonopoly legislation, following which the said companies were brought to administrative responsibility.
In Art. 14 of the Law "On Protection of Competition" establishes a ban on unfair competition, and provides an approximate list of the most typical forms of this type of offense: dissemination of false, inaccurate or distorted information that can cause losses to an economic entity or damage its business reputation, misleading nature, method and place of production, consumer properties, quality and quantity of goods or in relation to their producers, incorrect comparison by an economic entity of goods produced or sold by it with goods produced or sold by other economic entities, sale, exchange or other introduction into circulation of goods, if at the same time, the results of intellectual activity and equivalent means of individualization of a legal entity, means of individualization of products, works, services, illegal receipt, use, disclosure of information constituting commercial, official or any other legally protected secret.
This list does not contradict the list of actions specified in the rules international law, for example, in paragraph 3 of Art. 10.bis Convention for the Protection industrial property concluded in Paris on March 20, 1883.
Judicial practice focuses specifically on identifying these signs in violations of the law. Thus, in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 11 “On some issues of application of the Special Part of the Code of the Russian Federation on Administrative Offenses”, it is provided that when analyzing the question of whether a specific action committed by a person is an act of unfair competition, not only the provisions of Article 14 of the Law “On Protection of Competition”, but also the provisions of Article 10-bis of the Paris Convention for the Protection of Industrial Property, by virtue of which an act of unfair competition is considered to be any act of competition that is contrary to honest customs in industrial and commercial affairs, are subject to consideration.
As an example related to unfair competition in the financial services market, one can cite the fact that a claim was filed by the FAS on the grounds of a violation of Art. 14 of the Federal Law “On Protection of Competition” to Home Credit and Finance Bank LLC. The essence of the claim was that the bank hid additional commissions from borrowers, while receiving competitive advantage when providing express loans. The bank's website indicated that loans were provided without commission, but the contract itself with the borrower indicated a commission of 1.99% of the loan. Thus, the provision of false information about the cost of the loan was recognized as a violation of the antimonopoly law.
But the Decree of the Federal arbitration court of the Volga-Vyatka District dated September 7, 2011 No. Ф01-3618/11 in case No. А79-8284/2010, the actions of the antimonopoly authority, on the contrary, were recognized as unfounded in terms of bringing the open joint-stock company Sberbank of Russia represented by the Chuvash branch No. 8613 to administrative responsibility, provided for in Article 14.31, Article 14.31 of the Code of Administrative Offenses of the Russian Federation. The court did not agree with the antimonopoly authority and canceled its decision on bringing to responsibility, since the antimonopoly authority incorrectly determined that the bank had set unreasonably high prices for a financial service, which, in the opinion of this authority, lead to infringement of the interests of other persons. At the same time, the antimonopoly authority did not prove the influence of the Bank as a dominant economic entity in the market of the considered banking services on the behavior of other market participants due to the absence of a causal relationship between the applicant's actions to change tariffs for their services and the actions of other credit institutions.
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. Goals 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. Legal and regulatory framework for antimonopoly activities…………..18
2.3. The main provisions of the antimonopoly law…………..27
3. Activities of the Federal Antimonopoly Service of the Russian Federation………………31
4. The impact of antimonopoly legislation on the unity of the Russian market and economic development……………………………………………….…37
5.Development trends regulatory framework antimonopoly law in solving problems……………………………………….…40
6. State control over monopolistic activities in countries with developed market economies………………………………..…...43
Conclusion…………………………………………………………………………50
List of literature used…..………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………….
INTRODUCTION
Without the adoption of firm and consistent measures against monopoly, one cannot 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-and-control system that was present in the management of the economy until recently, in its essence, excluded the existence of free competition in economic activity.
From the Soviet economy, the Russian economy inherited high level concentration of production in many sectors of the economy. In Russia, natural monopolies also have great market power, operating in the basic sectors of the economy - the electric power industry 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 cargo turnover. Antimonopoly regulation, combined with support for domestic entrepreneurship and the organization of consumer protection, are one of the essential conditions for the successful socio-economic development of Russia.
Of great importance is the creation and improvement of the legislative framework regarding the regulation of monopolistic processes and competition, the understanding by the Russian population of the need for economic reforms in this area.
To carry out antimonopoly policy, the state creates antimonopoly services, the main task of which is to control monopolistic tendencies in the country.
In order for the implementation of antitrust policy to win the trust and support of the public, so that people know that they can turn to the antitrust authorities 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 antitrust laws and the impact of antitrust 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 antimonopoly legislation problems and possible ways to solve them; identifying sources of antimonopoly regulation problems; the main trends in changes in the antimonopoly legislation by analyzing the current regulations, taking into account the peculiarities of the Russian economy.
Study of antimonopoly policy at the federal level;
To get acquainted with the history of the formation of antimonopoly legislation in Russia;
Familiarize yourself with the regulatory legal acts of antimonopoly activities;
Consider the types of violations of antimonopoly law on the example of enterprises;
Familiarize yourself with the activities of antimonopoly authorities at the federal and regional levels;
To get acquainted with the implementation of state control over monopolistic activities in countries with developed market economies.
The subject of the study 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 the only seller) means the exclusive right to carry out any activity (production, trade, craft) owned by one person, group of persons, organization or state, allowing you to impose your own interests and receive monopoly profits.
Monopoly also finds its place in a market economy. Its existence can be judged by the signs of monopolistic behavior: by the destruction of market mechanisms (slowing down of scientific and technological progress, holding high prices, reducing the quality and reducing the volume of products, etc.).
A monopoly can be the state, regions, central economic departments, ministries, of course, state and private enterprises, as well as individual entrepreneurs. Usually, monopoly is associated with large and largest enterprises or corporations.
The essential features of a monopoly are the possession by the subject of property and monopoly power, the ability to dictate their terms, to influence the market equilibrium in a way that is beneficial for themselves, to manipulate prices and production volumes.
Competition is a necessary 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 (monopolistically) influence the general conditions for the circulation of goods in the corresponding commodity market. The opposite of competition is monopolistic activity, which is the actions of market participants that contradict antitrust laws and are aimed at preventing, restricting or eliminating competition.
Competition is permitted by law, and monopolistic activity is prohibited. Monopoly in the state economy is based on universal state ownership and the absence of a civilized market, i.e. total nationalization of the economy.
The negative consequences of the monopolism of state property (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 inflicts enormous harm on 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 the commodity 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 activity.
1.2. Types of monopolistic activities
The normal development of entrepreneurship is hindered by the monopolistic activity of entrepreneurs (economic entities) as a type of offense. According to Article 4 of the Law on Competition, monopolistic activities are actions (inaction) of economic entities that are contrary to antimonopoly legislation and are aimed at preventing, restricting 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 product market of similar products if its share of the product is 65% or more (Article 4 of the Law on Competition as amended in 1998). The position of an economic entity whose share in the market of a certain product does not exceed 35% cannot be recognized as dominant.
The abuse of a dominant position on the market by economic entities is expressed in the fact that the antimonopoly legislation prohibits them from taking such actions as: withdrawing goods from circulation to create a shortage in the market; imposing unfavorable terms of the contract on the counterparty; inclusion in the contract of discriminatory conditions that put the counterparty in an unequal position compared to other business entities; consent to conclude a contract only if such goods are included in which the counterparty is not interested (Article 5 of the Law on Competition);
2. Concerted actions of economic entities that restrict competition (Article 6 of the Law on Competition). Agreements (concerted actions) reached in any form in whole or in part (concerted actions) of competing economic entities with an aggregate market share of a certain product of more than 35% are prohibited and invalidated in accordance with the established procedure, if such agreements have or may result in restriction of competition. Such agreements are aimed at:
establishment (maintenance) of prices (tariffs), discounts, allowances (shares), margins;
increase, decrease or maintenance of prices at auctions and auctions;
division of the market on a territorial basis, the volume of sales or purchases, in terms 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 (coordinated actions of authorities and administrations that restrict competition (Article 8 of the Law on Competition);
5. Participation of officials of public authorities and public administration in business activities. According to Art. 9 of the Law, these officials are prohibited from engaging in independent entrepreneurial activities; own an enterprise; to vote independently or through a representative by means of their shares, contributions, shares of shares when accepted by the general meeting of a business partnership and company; hold positions in the management bodies of an economic entity. These officials have the right to engage in scientific and teaching activities.
1.3. Goals and methods of antimonopoly regulation in Russia
The demonopolization of the economy is the overcoming of monopolistic activity and the promotion of 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.
The antimonopoly policy of the state is always based on antimonopoly legislation.
Antimonopoly legislation is a complex and extensive 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, combating monopolism and unfair competition. All these measures are aimed at maintaining a competitive environment, counteracting monopolism and unfair competition, to regulate the actions of firms and corporations in the market of goods and services, in the capital market, cutting off those that are recognized as unscrupulous, of poor quality in relation to the rights of producers and consumers, and simply harmful to society.
The complex of state measures that make up the antimonopoly policy is based on a general conceptual idea, according to which the highest welfare of citizens is achieved when they have the opportunity to freely exchange the goods and services they produce for competitive market. The competitive market thus 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 a 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) limiting 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 capital centralization, but it did not stop the process of monopolization itself. Opposition to the monopolization of the economy is expressed in the form of prohibitions on conducting industrial and commercial activities, in the downsizing of firms, their reorganization, division, up to liquidation. Despite differences in antitrust laws different countries, they have common features and goals. These include: encouraging competition; control over firms that occupy a dominant position in the market, and over the process of mergers and acquisitions of companies; protection of consumer interests; promoting the development of small and medium-sized businesses.
Actions of entities aimed at the territorial division of markets, the boycott of competitors, the attachment of the buyer to certain sources of supply, the establishment of agreed prices and discounts, the harmonization of 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 antimonopoly regulation has arisen relatively recently. It should be noted that the monopolies here were created artificially, by concentrating production, which led to the formation of gigantic enterprises and associations. In the post-Soviet countries, antimonopoly policy was originally aimed at overcoming "command-administrative monopoly", i.e. to change the type of economic systems.
Summarizing the above, we note that free competition led to the concentration of production, which led not to the emergence, but to the dominance of market monopolies. Their most common types are pure, or absolute, natural and artificial, production and organizational monopolies. The classic organizational forms of monopolies are cartels, syndicates, trusts, concerns, which still exist in a modernized form.
During the implementation of antimonopoly measures, the following main goals are pursued:
1. Ensuring the unity of the economic space on the territory
Russian Federation
2. Ensuring "transparency" of processes related to the creation, merger and accession of commercial organizations, the acquisition of large blocks of shares, major production means and intangible assets, as well as rights that make it possible to determine the conditions for the activities of enterprises that occupy a dominant position in the market.
3. Reducing barriers to entry into commodity markets
4. Creation of effective legal mechanisms that ensure compliance with the ban on entrepreneurial activities by representatives of the authorities, including through the use of state and municipal unitary enterprises as tools for combining economic and power powers by the authorities.
5. Activation of work on the prevention and suppression of unfair competition in the commodity markets.
The achievement of the set goals is realized through the use of methods that have developed in world practice, the main of which are the following: the use of restrictive measures, control over the increase in economic concentration, a ban on unfair competition, prohibitions on actions of authorities and management that may adversely affect competition, the use state register.
restrictive measures. They are applied by the antimonopoly body to business entities that violate antimonopoly laws.
These are prohibitions on monopolistic activities and unfair competition, on the actions of authorities and administrations that may adversely affect the development of competition.
Prohibitions on monopolistic activity are divided into prohibitions against agreements that restrict competition and prohibitions against enterprises abusing their dominant position. Such abuses are the most typical (more than 60%) violation of the antimonopoly law.
Quite often there are such violations as the imposition of unfavorable terms of the contract on the counterparty, non-compliance with the pricing procedure, concerted actions of enterprises aimed at limiting competition. The monitoring of more than 200 prices showed that more than a third of the enterprises that occupy a dominant position in the market overestimate the prices of goods and services.
The law prohibits setting monopolistically high or monopolistically low prices, withdrawing goods from circulation in order to create or maintain a shortage or increase the price, impose on the counterparty the terms of the contract that are unfavorable for him or not related to the subject of the contract, include in the contract discriminatory conditions that put the counterparty in an unequal position compared to other enterprises, prevent other enterprises from entering the market (or leaving it), induce the counterparty to refuse to conclude contracts with individual buyers
(customers), despite the fact that it is possible to produce or supply 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 Interim Guidelines for the Identification of Monopoly Prices, dated April 21, 1994, suggest using the concept of profit capping and the concept of market comparison at the same time. The application of the first concept is complicated by the fact that production costs must be set taking into account the fact that production capacities can 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 under the dominance of barter and "black cash". Therefore, the concept of comparing markets is preferable, in which the antimonopoly agency does not need to check the production indicators of a monopoly enterprise, it is enough to identify monopoly high or monopoly low prices based on external factors.
Now in Russia monopoly high prices are practiced more often, and in countries with developed competition - monopoly low, sometimes even dumping.
Russian monopolism manifests its anti-competitive behavior mainly in relations with consumers or suppliers, and not with competitors. But as competition develops, the likelihood of monopolistically low prices increases: powerful diversified companies, thanks to cross-subsidization due to the profitability of some sectors, can underestimate the prices of products of others and thereby block competitors. In this part, it is especially necessary to control the financial and industrial groups.
Register as a tool of antimonopoly control. According to the results of the analysis of the state of the commodity market and the share of enterprises on it (more or less than 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 by its territorial offices in the case of regional markets. The register is compiled in order to have an information base on the largest market entities and control their compliance with antimonopoly laws.
The register necessarily includes enterprises that are the only producers in Russia of certain types of products. It includes, for example, the Bryansk Machine-Building Plant (isothermal cars),
"Kalugaputmash" (rail welding machines, laying cranes), Novosibirsk Metallurgical Plant (sheet tool cold-rolled steel), Magnitogorsk Iron and Steel Works (quality grade strips), "Ufaneftekhim" (ethylene propylene rubbers), "Volga Khimvolokno" (polyurethane textile threads), etc.
The number of enterprises included in the register depends on the boundaries of the commodity market in which their share is determined. The more detailed the product range is considered, the more enterprises can be included in the register. The 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 yet mean that it is a monopolist and restrictive measures should be applied to it - say, in terms of prices, because the very presence of large enterprises does not mean that they are abusing their dominant position. Moreover, their monopolistic activity is impossible if effective demand or resources for the development of production are limited in the market. The monopoly behavior of an enterprise and measures to prevent 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 absence of formal dominance of any of the producers, favorable opportunities are created for monopolistic collusion, which is quite difficult to prove legally; monopolized, including markets of natural monopolies.
The structure of commodity markets, the nature and level of monopolization of the economy are changing as a result of privatization, price liberalization, the opening of the domestic market to international competition, bankruptcy and reorganization of unprofitable enterprises, and the regulation of natural monopolies.
In Russia, natural monopolies include, first of all, RAO UES
Russia", "Gazprom" and the Ministry of Railways. Their fate is hotly debated. The measures outlined by the Decree of the President of the Russian Federation "On the main provisions of the 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, and the formation of competitive (market) relations, opponents of demonopolization believe that the implementation of the planned 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 antimonopoly regulation methods cannot be carried out without an appropriate legislative framework.
2. Antimonopoly law in Russia
2.1. Stages of development of antimonopoly legislation
The current Russian legislation dedicated to the protection of competition has gone through several stages in its development. The transition of the Russian state to market relations required adequate legal measures, therefore the first stage The development of domestic antimonopoly legislation is rightfully considered the moment of adoption of the Law of the RSFSR "On Competition and Restriction of Monopoly Activities in Commodity Markets".
In July 1991, almost simultaneously with the adoption of the said Law, the State Committee of the Russian Federation for Antimonopoly Policy and Support for New Economic Structures was created, later - the State Antimonopoly Committee, in 2003 - the Ministry for Antimonopoly Policy and Entrepreneurship Support, transformed into the Federal Antimonopoly Service of the Russian Federation (FAS Russia). The competence of these antimonopoly bodies was directly determined by the Law of the RSFSR "On Competition and Restriction of Monopoly Activities in Commodity Markets".
The Constitution of the Russian Federation, adopted by popular vote in the same year, guaranteed the unity of the economic space, the free movement of goods, services and financial resources, and the support of 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 involving violations of the antimonopoly law showed that the current Law on Competition of 1991 was not fully adapted to the economic processes in Russia, and already in 1993 the need for its significant updating and supplementing became obvious. From that 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 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, Clause 1, Art. 10 of the Civil Code of the Russian Federation does not allow the use of civil rights to restrict competition, as well as the abuse of a dominant position in the market. Changes in the constitutional and civil legislation necessitated further amendments to the Competition Law of 1991.
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 that dominate the market, which is currently implemented mainly as part of the regulation of the activities of natural monopoly entities based on Federal Law No. 147-FZ of August 17, 1995 "On Natural Monopolies", as well as special laws (for example, "On State Regulation of Tariffs for Electricity and Heat Energy"). In order to protect against unfair competition in the field of advertising, prevent and suppress inappropriate advertising in 1995, the Federal Law "On Advertising" was adopted. Currently, the Federal Law of March 13, 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 other legal entities and individuals related to funds).
Substantial amendments to the 1991 Law on Competition were made in 2002 and largely removed small and medium-sized businesses from the tutelage of officials.
At this stage, the development of antimonopoly legislation is crowned by the Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" 1
Antimonopoly legislation in Russia.
2.2. Regulatory framework for antimonopoly activities
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, preparation and adoption of relevant regulatory documents.
Such documents include the Rules for Considering Cases on Violations of Antimonopoly Legislation (approved by order of the SCAP of Russia dated May 12, 1994 No. 53), 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 monopoly enterprises and on special regulation of their activities. The legal foundations of antimonopoly are contained in the Laws on Enterprises and Entrepreneurial Activity, on the Arbitration Court, the Arbitration Process, in the regulatory documents governing the privatization process.
To determine a monopoly enterprise, it is important to establish not only its market share (the concepts "enterprise occupying a dominant position in the market" and "enterprise occupying a monopoly position in the market" are used in the legislation as synonyms), but also to identify the presence of signs that allow characterizing the behavior entrepreneur as a monopoly.
The SCAP of Russia, in accordance with the right granted by the Law to establish the maximum share value, the achievement of which makes it possible to consider the position of an enterprise as dominant, determined two conditions that make it possible to characterize 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 Monopoly Enterprises means that the enterprise is recognized 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 signs was used - market share, while the concept of "dominant position" requires the establishment in each specific case of the presence of certain signs that characterize the position of the enterprise as dominant.
The procedure for the formation of the State Register, types of Registers, the procedure for exclusion from the Register are determined by orders of the Civil Code of Administrative Offenses of the Russian Federation No. 60 of October 10, 1991 and No. 45 of February 20, 1992. They provide for the procedure for notifying monopolist enterprises of inclusion in the Register, the mandatory publication of the Register in mass media ("Economic newspaper", "Financial newspaper", the journal "Legislation and Economics").
The SCAP of Russia left the formation of regional registries to its territorial departments. Inclusion in the Register depends on the geographical market in which the enterprise 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 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 Price Committee.
The dominant position of an economic entity causes other legal consequences: attribution of property to federal property, restrictions and features of privatization, etc. In this regard, a joint regulatory act was adopted "On the procedure for interaction between the State Property Committee of Russia, property management committees and state antimonopoly authorities 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 Committee for Administrative Offenses of the Russian Federation dated 30.04. - 05.05.93 No. ACh4-19 / 3009 -LB / 1869).
The procedure for exclusion of associations and enterprises from the Register of Monopolists assumes that they were included in the Register lawfully. In practice, 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 the enterprise - the ability to limit 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 forced distribution of products, state regulation of prices and a number of other strict measures, up to the reorganization of enterprises that abuse their monopoly position. The procedure for the application of these measures was initially 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." It was further detailed in the Decree of the Government of the Russian Federation of February 27, 1992 No. 132, which entrusted the organization of measures for the special regulation of the economic activities of monopoly 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 for 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. Orders and documents are the basis for concluding contracts, and in case of refusal of the supplier or his evasion from concluding a contract, to apply to the arbitration court with an application for coercion to conclude a contract.
1 Order No. 53 of the SCAP of Russia dated May 12, 1994 approved the rules for considering cases of violations of antimonopoly legislation, developed in accordance with paragraph Z. 27 of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activities in Commodity Markets" and regulating the procedure and terms for considering cases of 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 Regulation approved on December 29, 1991 by the Ministry of Economy and Finance of the Russian Federation.
A number of regulations provide for measures related to the demonopolization of economic structures: the separation of associations, concerns, other associations of enterprises that occupy a dominant position in the commodity markets and violate antimonopoly laws, as well as the creation of independent enterprises with the right of a legal entity by separating structural units and other division
Measures to demonopolize the economy are closely linked with the privatization of state and municipal enterprises and create the necessary conditions for its implementation. This is the purpose of the Decrees of the President of Russia dated November 25 and 29, 1991 on the commercialization of trade, Catering and household services.
The Instruction "On the Procedure for Controlling the Acquisition of Units, Participatory Interests in Partnerships and Ordinary Registered Shares of Joint-Stock Companies and the Procedure for Recognizing Persons Controlling Each Other's Property", approved by Order No. acquisition by an investor of 35 percent or more of shares, shares and stakes in the authorized capital of the issuer or shares that provide more than 50 percent of the votes of shareholders when 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, shares of participation, when circulation of shares between investors.
Persons controlling each other's property are recognized as: persons owning more than 25% of shares, shares or participation interests, a person owning shares that provide 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 elected management bodies of various legal entities.
Control over the acquisition by an investor of 35 or more percent of shares, stakes and participation interests is carried out by the SCAP of the Russian Federation or its territorial departments (depending on the size of the authorized capital of the 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 of 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 of 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. The 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 when determining the boundaries of commodity markets.
The absence of the consent of the SCAP of Russia or its territorial department for the acquisition of 35 or more percent of shares, shares or shares of participation is the basis for declaring the transaction invalid.
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 division from the existing enterprise ( subdivisions), 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 Committee for Administrative Offenses of Russia dated 30.04.-05.93 No. ACH-19/3009-LB/1869 "On the procedure for interaction between the State Property Committee of Russia, property management committees and state antimonopoly authorities of Russia in the process of privatization of state enterprises and the creation of holding structures" .
Control is exercised 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 conclusion, proposals may be made on the use of the method of privatization, 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 tender.
When a holding company is created on the basis of a large business structure, subdivisions (subdivisions) are separated from the relevant 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 holding company's documents with the requirements of the temporary regulation on holding companies and the Law "On Competition and Restriction of Monopolistic Activities in Commodity Markets".
This Law quite clearly delimits the powers of the Antimonopoly Committee and its territorial departments and judicial bodies (executive and judicial authorities). Thus, the SCAP is not entitled to make decisions on the termination and amendment of contracts (agreements), on their recognition, as well as unlawful acts of authorities or management, as invalid, to recover losses and fines. This is the prerogative of the judiciary (arbitration and general courts).
The Antimonopoly Committee or territorial bodies in the event of non-compliance with the order, non-payment of the fine, must apply for the recognition of the contract or act as invalid and with other requirements to the arbitration or general court. 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 the law (Order of the SCAP of the Russian Federation dated August 24, 1992 No. 185). In particular, the Committee should exercise control and suppress the monopolistic activities of economic entities and unfair competition in the market of consumer goods, works and services by sending orders 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 departments. The Directive of the SCAP of Russia on the termination of violations of consumer rights specifies the deadline and specific actions that the contractor (manufacturer, seller) must take to eliminate violations of consumer rights. In case of evasion or untimely execution of the order, the Civil Code of Administrative Offenses of the Russian Federation initiates a case on the imposition of a fine. The regulation on the procedure for imposing fines on economic entities for evading or untimely fulfillment of the instructions of the SCAP of Russia (territorial administrations) 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 dated July 14, 1994, No. 83 approved the "Regulations on the procedure for considering cases of violations of the principles of fair competition and consumer rights to reliable information." When advertising the services of banks, financial, insurance and investment enterprises, organizations, individual entrepreneurs, joint-stock companies, as well as other legal entities that raise 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 get acquainted with the terms of the issue;
Do not allow announcements of guarantees, promises or proposals about the future efficiency (profitability) of their activities;
Do not promise to carry out work, provide services, provide goods, if they are not actually carried out (are not produced) on the day of advertising;
In the presence of the listed violations, the relevant commission issues a decision that is subject to mandatory consideration by the advertiser and the body that carried out the licensing.
The advertiser, whose advertisement is recognized as unfair, is obliged to withdraw his advertisement from distribution within three days from the date of the expiration of the period for consideration of the decision and inform the SCAP of Russia (territorial administration) and the body that licensed the advertiser about this. Otherwise, the license granted 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 Monopoly Activities in Commodity Markets", Decree of the President of the Russian Federation of June 10, 1994 No. 1183, Regulations on the SCAP of Russia, approved by Decree of the President of the Russian Federation of August 24, 1992 No. 915, regulations on territorial departments of the SCAP of Russia, Rules for considering cases of violations of antimonopoly legislation, approved by order of the SCAP of Russia of May 12, 1994 No. 53.
The basis for the consideration of the case is the identification of facts of unfair advertising; Advertisers fail to comply with the following obligations:
Indicate the actual amount of dividends paid on ordinary registered shares during the last fiscal 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 antimonopoly law
The core of the Russian antimonopoly legislation is the Law of the RSFSR “On Competition and Restriction of Monopolistic Activities in Commodity Markets” dated March 22, 1991 (hereinafter referred to as the Law). Monopolistic activity, according to Art. 4 of the Law, are actions (inaction) of economic entities or federal executive authorities, executive authorities of constituent entities of the Russian Federation and local governments aimed at preventing, restricting or eliminating competition that are contrary to antimonopoly legislation.
Section II of the Law is devoted to forms of monopolistic activity. It consists of five articles providing for the regulation of the abuse of a dominant position in the market, vertical and horizontal (cartel) monopoly agreements, the activities of executive authorities and local self-government bodies that restrict competition, as well as the inadmissibility of participation in entrepreneurial activities of officials of state authorities and state administration.
In paragraph 1 of Art. 5 of the Law establishes 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 the restriction of competition and (or) infringement of the interests of other economic entities or individuals. The dominant position is recognized as the position of an economic entity, whose share in the market of a certain product (i.e., having no substitute or interchangeable goods) is 65% or more, unless the economic entity proves that, despite exceeding the specified value, its position the market is not dominant.
Exemplary forms of manifestation of abuse of a dominant position, specified in Art. 5 of the Law on Competition, the following:
Withdrawal of goods from circulation, the purpose or result of which is the creation or maintenance of a shortage in the market or an increase in prices;
- imposing on the counterparty the terms of the contract that are not beneficial for him or not related to the subject of the contract (unreasonable demands 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 compared to other business entities;
Consent to conclude a contract only if provisions are made in it regarding goods in which the counterparty (consumer) is not interested;
- creation of barriers to market access (exit from the market) to other economic entities;
Violations of the pricing procedure established by regulatory enactments;
- setting 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;
- unreasonable refusal to conclude an agreement with individual buyers (customers) if it is possible to manufacture or supply the relevant goods.
According to Art. 6 of the Law, anti-competitive 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, fully or partially reached agreements (concerted actions) of competing economic entities (potential competitors) with a total market share of a certain product of more than 35% are prohibited and, in accordance with the established procedure, invalidated, if such agreements may result in restriction of competition. .
Paragraph 2 of Art. 6 of the Law is devoted to vertical anti-competitive collusion. Thus, agreements (concerted actions) reached in any form by non-competing economic entities, one of which occupies a dominant position, and the other is its supplier or buyer (customer), are prohibited 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 the 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 characteristic of countries with economies in transition.
According to paragraph 1 of Art. 7 of the Law, federal executive authorities, executive authorities of constituent entities of the Russian Federation and local governments are prohibited from adopting acts and (or) taking actions that limit the independence of economic entities, create discriminatory or, conversely, favorable conditions for the activities of individual economic entities, if such acts or actions have or may result in restriction of competition and (or) infringement of the interests of economic entities or citizens.
When merging, creating, joining commercial organizations, various manifestations of anti-competitive consequences are possible. Articles 17 and 18 of the Law regulate the control of the following types of economic concentration: 1) creation, merger and accession of associations of commercial organizations, as well as commercial organizations themselves; 2) the acquisition of certain blocks of shares (deposits, shares) in the authorized (share) capital of economic entities; 3) liquidation and division (separation) of state and municipal unitary enterprises (if this leads to the emergence of an economic entity, the share of which in the relevant commodity market exceeds 35%); 4) ownership 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 that allow determining the conditions for the conduct by an economic entity of its entrepreneurial activity; 6) interweaving directorates.
A necessary condition 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 following forms of unfair competition:
Distribution 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, product quality;
Incorrect comparison by an economic entity of the goods it produces or sells 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, production or trade information, including trade secrets, without the consent of their owner (Article 10 of the Law on Competition).
The implementation of state policy to promote commodity markets and competition, 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 for Antimonopoly Policy).
The federal antimonopoly body is part of the structure of the federal executive bodies, formed in the manner established
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 in organizational and structural terms, 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 the 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 stem from their tasks and functions (Article 12 of the Law on Competition).
In order to promote the development of commodity 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 soft loans, as well as on the reduction of taxes or exemption from them for economic entities entering the market of 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 output of goods in order to eliminate the dominant position of individual economic entities;
5) on attraction of foreign investments, creation of organizations with foreign investments and free economic zones;
6) on licensing of export-import operations and changes in customs tariffs.
The federal antimonopoly body is entrusted with state control over:
1) creation, merger and accession of commercial organizations (unions or associations);
2) mergers and acquisitions of commercial organizations, if the amount of their assets according to the last balance sheet exceeds 100,000 minimum wages;
3) liquidation and separation (separation) of state and municipal unitary enterprises, the amount 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 assigned to the federal antimonopoly authorities - this is control over compliance with the law in the implementation of individual business transactions by economic 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 from a legal or natural person, the following are carried out:
1) acquisition by a person (group of persons) of shares with the right to vote in the authorized capital of a business company, in which such person (group of persons) acquires the right to dispose of more than 20% of the said shares (stakes). This requirement does not apply to the founders of a business company during its formation;
2) obtaining ownership or use by one economic entity (group of persons) of fixed production assets or intangible assets of another economic entity, if the book value of the property constituting the subject of the transaction exceeds 10% of the book value of fixed production assets and intangible assets of the economic entity alienating the property ;
3) the acquisition by a person (a group of persons) of the rights that allow determining the conditions for an economic entity to conduct its entrepreneurial activities (clause 2, article 18 of the Law).
Tasks and goals of antimonopoly 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:
Assistance in the formation of market relations based on the development of competition and entrepreneurship;
Prevention, restriction and suppression of monopolistic activity and unfair competition;
State control over compliance with antimonopoly legislation.
The Federal Antimonopoly Authority performs the following main functions, 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 regulations relating to the functioning of the market and the development of competition;
Gives recommendations to federal executive authorities, executive authorities of the constituent entities of the Russian Federation and local self-government on the implementation of measures aimed at promoting the development of commodity markets and competition;
Develops and implements measures to demonopolize production and circulation;
Controls compliance with antimonopoly requirements during the creation, reorganization and liquidation of business entities;
Controls the acquisition of shares (stakes) with the right to vote in the authorized capital of business entities, which may lead to a dominant position in the markets in the Russian Federation of business entities or to the restriction of competition.
In order to promote the development of commodity markets and competition, support entrepreneurship and demonopolization, the federal antimonopoly body may send recommendations to the relevant federal executive authorities, executive authorities of the constituent entities of the Russian Federation and local governments:
On the provision of preferential loans, as well as on the reduction of taxes or exemption from them for economic entities entering the market of 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 individual 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 types of activities subject to licensing and the procedure for their licensing.
The federal antimonopoly authority takes part in the implementation of federal demonopolization programs, programs for developing competition and supporting entrepreneurship.
4. Influence of antimonopoly legislation on the unity of the Russian market and economic development.
Antimonopoly legislation is one of the few types of legislation that divides the Russian market into separate commodity markets. In itself, such a division does not present a particular problem and does not contradict the correctly understood constitutional principle of the unity of the economic space. The fact is that any economic space cannot be united if unity is understood as homogeneity. Another understanding can give a view of space from the point of view of an acting person, for whom space is a space of choice and decision-making, and the desired unity of space should then mean a desire to increase its "extent" - expanding opportunities for choice and activity for business and citizens. The space is indeed heterogeneous and its classification into individual markets cannot in itself present a problem. However, it is one thing to classify for the purpose of understanding the world, and another for the purpose of transforming it. As we have shown above, the classification of a person as an entrepreneur can prevent him from seeing non-entrepreneurial traits in his behavior and, moreover, lead to legislative restrictions on his actions as a consumer.
The division of the Russian economic space into separate markets in the antimonopoly legislation is not just a way of describing what is happening, but precisely an instrument of action. The concept of a commodity market is included in the definition of a dominant position, the presence of which makes it possible to apply to the company the norms of antimonopoly legislation that regulate the most important aspects of the activities of enterprises: increasing capitalization, reorganization, the structure of production and sales. Thus, getting into the Register, created in accordance with the Federal Law "On Competition and Restriction of Monopolistic Activities in Commodity Markets" and the Decree of the Government of the Russian Federation "On the Register of Economic Entities with a Market Share of More Than 35% of a Certain Good", means the possibility of quite serious additional costs . The regional practice of maintaining such registers shows that in determining the geographical boundaries of the market, the boundaries of the subject of the federation and its regions are widely used. Therefore, even firms operating in such highly competitive sectors as the production of meat, bread and sausage products become "monopolists".
Considering antimonopoly regulation as a barrier to entry, we find that this barrier will be most significant for regions with a relatively small domestic market, either due to geographical size or due to the underdevelopment of the region. Thus, the main two consequences of antimonopoly 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" profits offered by antitrust laws is the most serious blow to the competition process. Other norms developed on the basis of the model of perfect competition have a similar effect. There is only one choice: either competition continues, or schemes are imposed on it that copy the situation of the absence (end) of competition. But if we give any place in the life of the "normal profit" that can only come about as a result of "normal activities", we will see that competition and innovation disappear, and vigorously competitive people are replaced by faceless firm owners.
The influence of the antimonopoly legislation directly on the production 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 passage of this act was the serious pressure of the farm lobby (and groups that joined them) that could not compete with the new, mechanized agricultural production, whose center was Chicago. Accordingly, it was not monopolistic restrictive practices that were the cause of concern for interest groups, but the high level of competition in the sectors accused of monopoly. It was in these sectors that prices fell more than in other sectors, and output growth 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 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 a generalization of law enforcement practice. It is necessary to update the legal framework in such a way that it would make it possible to more reliably suppress the abuse of market power, infringement of the interests of economic entities, apply penalties to legal and individuals, including officials of federal and regional executive authorities and local governments, to better regulate the safety and quality of goods and services. We need a law “On the protection of competition in the financial services sector”.
Russian competition law was developed under strong monopolies and only emerging market relations. Therefore, it is important for our country not only to limit monopolism and abuse of dominance, to enforce competition rules, to punish violations, but also to create a competitive environment by 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 the abuse of market power, collusion, agreements and concerted actions resulting in restriction of competition and (or) infringement of the interests of economic 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, removal of barriers to the development of competition and entry into the markets of other economic entities.
3. Opposition to the creation of new monopolistic structures as a result of the redistribution of property, the implementation of corporate investment policy and integration processes, including 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 common economic space of the CIS, adaptation of competition policy for the purpose of Russia's entry into the world economic community.
The developers of the Russian antimonopoly legislation still have a lot of work to do, and it would be advisable to take into account the experience foreign countries without forgetting the specifics of the Russian market.
To demonopolize the economy and develop competition, experts suggest:
Establish antimonopoly control over tenders, tenders, auctions, including when placing orders for the supply of products for state and municipal needs (in 1998 alone, the financial turnover at such tenders and auctions 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 the legal regulation of the use of public funds to expand the competitive environment, reduce the concentration of production and reduce departmental monopoly;
Coordinate the antimonopoly legislation of the CIS countries, 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, standing up for market competition, finding effective means of antimonopoly prevention.
In all industrialized countries, the process of concentration of capital and competition is currently being regulated (usually within the framework of commercial law) 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, antimonopoly regulation has become a regular function of the state since the late 19th century and is based on the established system of market relations, antitrust legislation (USA, Canada, Japan), or on legislation to combat restrictive economic practices (Scandinavian countries), or on the norms enshrined major international agreements. A number of countries have also enacted laws against unfair competition (including fraud) in manufacturing and trade. At the national level, there are antimonopoly bodies responsible for the development and implementation of antimonopoly policy. In the US, these are the Federal Trade Commission and the antitrust division of the Department of Justice. In Germany, there is the Federal Office for State Supervision of Cartels and the Monopoly Commission, in England - the Commission on Mergers and Monopolization and the Court of Justice for Free Trade, in France and Spain - the Competition Council, in Japan - the Committee on Fair Deals.
Historically, there have been two systems of antimonopoly regulation: American and Western European. The criterion for their differences is the attitude towards monopoly. The first - 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 the implementation of antitrust policy, preventing the manifestation of anticompetitive behavior, but not deterring efficient large-scale production.
The first antitrust laws were passed in Canada (1889) and in the USA (1890). Today, American antitrust law is considered one of the most well developed and well-tested by time. In the United States, the main laws governing monopolistic activities and monopolized markets are the Sherman and Clayton Acts, the Federal Trade Commission Act, and the Celler-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 any other form, as well as a secret agreement aimed at restricting trade and commercial activities ..." This law also states that "every person who monopolizes or attempts to to monopolize ... any branch of the trading operation ... will be considered a delinquent." In Clayton's 1914 amendment to this law, the violation of its articles is qualified as a "serious crime", punishable not only by monetary fines, but also by imprisonment. In special cases, the court may decide to decentralize and split the firm into a number of smaller enterprises.
From the point of view of American law, a company can be recognized as a monopolist and legal actions 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.
The US legislation is quite tough on mergers. Thus, horizontal mergers - mergers of two competitors, for example, the automobile manufacturers Ford and Chrysler - are recognized as illegal if the total market share of the resulting 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 owns 10 percent or more of the relevant market. It is believed that vertical mergers reduce the opportunities for competition between companies that sell raw materials. US antitrust law essentially allows conglomerate mergers between companies that are not technologically related. For example, telephone and insurance companies, since the monopolization of the market of one of the goods in this case does not occur.
In the US, there are 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 a threefold amount.
However, in reality, cases of toughening in relation to monopoly companies are not used so often. For example, in the history of American antitrust law, about 30 companies have been disbanded. The most high-profile cases were the dissolution in 1911 of the oil refining and tobacco trusts and the division in 1982 of the ATT company. 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.
Unlike US antitrust law, which generally aims to follow the letter of the law, European countries decisive in the antimonopoly policy of the state is the principle of "common sense". The main goal of the antimonopoly policy of most European countries is to improve the quality of products through the broad development of competition. In England, the main bodies implementing antitrust policy are the Office of Trade Compliance and the Commission on Monopolies and Mergers. Their function is to exercise general supervision. Companies that control more than 25% of the market may fall into their field of vision. Since the main goal of antitrust policy in England is to stimulate competition, direct administrative methods (such as prohibition of merger processes) are used to a limited extent.
In the UK, two systems of control over monopolies have developed. 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 system of control provided for by the law on restrictive trade practices, the Court of Restrictive Practices plays a key role. 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 state interference in the economic activities of entrepreneurs. The functions of the Office include: collecting and analyzing information on abuses of dominant position, referring cases of a monopoly situation in any industry to the Monopoly Commission, exercising control over proposed mergers of enterprises, referring cases of cartel agreements to the court on restrictive practice, initiating cases on about setting and maintaining resale prices. The main task of the Commission on Monopolies and Mergers is to investigate and draw up reports on the existence (or the 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 about the violation of public interests, the Secretary of State has broad powers to apply various measures to influence the offender: making decisions on the termination of the contract, prohibitions in the supply of goods, binding transactions, discrimination, prohibition or restriction mergers, on the division of enterprises by selling any of their parts or in some other way.
In France, antimonopoly legislation has been in force since 1953. However, active actions against monopolies began to be carried out from the 70s. Prior to this, it was believed that a tough anti-monopoly policy could harm an insufficiently powerful domestic industry.
On the issue of control over merger processes, the antimonopoly law takes a tougher position in relation to horizontal mergers. If during a vertical merger the maximum quota of a company in the market is set within the limits of up to 40%, then during a horizontal merger, amalgamation of companies is not allowed if the quota is exceeded by more than 25%.
The final decisions to limit monopolistic activity are made by French law through administrative procedures, and not through the courts. There are currently about 3,000 state price controllers in France. Their main task is to control the state price discipline. Control over monopolistic activity 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, on whose decisions the Minister of Economy cannot veto. It performs advisory functions at the request of various institutions and organizations, and can also apply the following sanctions: instruct the enterprise or person to stop the incriminated activity within a certain period; impose a fine on an enterprise or a person, the maximum amount of which is 5% of the trade turnover of the offending enterprise; require the violator to publish the Council's verdict in certain journals. If an enterprise that has become a victim of anti-competitive policy demands compensation for damage, 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 authorities include the Federal Cartel Office, the Federal Minister for Economic Affairs and the higher authorities of the Länder. 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 occupies an intermediate position between the two systems of antitrust law. A significant impetus in the development of antitrust law in Germany was the establishment of a free market economy there in the postwar period. In 1949, two bills were developed: on ensuring competition by increasing efficiency and on the department for monopolies. Work in this direction was continued and culminated in the adoption in 1957 of the Law Against Restrictions on Competition, which in everyday life received the abbreviated name Cartel Law, which does not accurately reflect its content, since it is designed to regulate competition restrictions not only in the form of cartels. The Law is currently in force in the 1989 version. Having entered into force on January 1, 1990, it is now dated as such. It should be noted that the German Cartel Law is based on two principles: the principle of prohibition and the principle of control and regulation of monopolistic activity. As in the US, it prohibits a certain category of agreements, such as cartel agreements and cartel rulings. However, these prohibitions are accompanied by numerous exceptions that largely neutralize the principle of the prohibition of monopoly practices. So, if the Sherman Law declares illegal the conclusion of any agreement restricting trade, then the German Cartel Law invalidates the execution of cartel agreements or regulations. In addition, unlike horizontal competitive restraints, vertical restraints are not formally prohibited. They are subject to administrative control in order to prevent anti-competitive practices.
Of the European countries, the latest antitrust legislation was adopted in Italy - in 1990. Italian antitrust legislation 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 all-European level. The EU has set up a Merger Control Commission. The Commission can control mergers if the global turnover of a multinational company in an EU country exceeds ECU 5.0 billion.
The antimonopoly legislation of Japan is considered quite liberal. It recognizes the dominant position of one company, which controls 50% of the market, two - 75%. There are incentives for R&D firms.
The resolution of disputes is usually carried out neither by judicial nor administrative means, but only through negotiations.
In the West, antimonopoly policy is a flexible system of permanently operating, mobile restructuring measures and sanctions that are prohibitive, restrictive or encouraging.
CONCLUSION
Summing up what has been said, it can be argued that antimonopoly legislation is the most important component of the modern economy.
The scope 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 with optimal prices for goods and services.
The experience of Western countries in antimonopoly legislation is great and varied. The emergence of such legislation is due to historical reasons. Due to the peculiarities of the development of the economy of various countries, different systems of antimonopoly regulation have developed. Despite the difference in approaches to antimonopoly regulation in various Western countries. The US antimonopoly practice is considered to be especially developed in this regard, since its legal (legislative) aspect, like other areas of law in the US, is based on a case system.
The specifics of Russian monopolies also affected the peculiarities of legislative regulation of their activities. In the capitalist countries, monopolies appeared when market relations already existed, and the state, in order to prevent the strangulation of competition, began to introduce restrictive norms. Russian competition law was developed under strong monopolies and only emerging market relations. Therefore, Western experience in a certain, and quite significant part of it, is not applicable in Russian conditions.
Of course, the demonopolization of production based on state property is a long and complex process. In part, overcoming monopolism can be carried out by disaggregating enterprises, by mechanically dividing them into parts. The construction of new backup enterprises would require too much funds, which our country does not currently have at its disposal. It can be assumed that the overcoming of monopolism will be due to the diversification of production at existing enterprises, which are able to use free capacities (or expand existing ones) to produce scarce goods. In the process of formation of market relations, the share of state property is gradually decreasing, but various forms of individual and collective property are developing: individual enterprises, partnerships with full and limited liability, joint-stock companies of open and closed types, cooperatives, associations, etc. Various forms of ownership operating in common system of economic relations cannot be isolated from each other. Overcoming their specificity, they inevitably intertwine. Based on this interweaving, mixed forms of ownership can arise. The objective basis of this interweaving is the mutual complement and use of those specific opportunities that are inherent in each of the specific forms of management. So, in Russian joint-stock companies, the property of individual citizens, collectives and the state is now merging. Creation and development of JSC is the main way of denationalization 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 a political affiliation. And only then will the state be able to fully replace the decades-old monopolies with a free and self-organizing market.
At the regional level, there is currently a negative trend towards strengthening 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 the antimonopoly law have recently been initiated against local authorities. They were associated with the establishment of various kinds of administrative barriers.
These include barriers to entry into local, local commodity markets for non-resident economic entities that are able to successfully compete with local producers, the introduction of higher local tax rates for non-resident enterprises, increased license fees, complicating the procedure for licensing types of activities, complicating the procedure for registering enterprises, creation of obstructions in abduction land plots, priority distribution of any kind of limited resources, etc.
It should be taken into account the fact that the state authorities and the largest economic entities operating in this product market. This allows the latter to lobby their interests and achieve decisions directed against potential competitors, including in matters of state aid and government orders.
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Conclusions……………………………………………………………………… 19II. Antitrust legislation…………………………………...20 1. Antitrust bodies: system, goals and objectives……………...20 2. Antitrust legislation RF………………………….23Conclusion…………………………………………………………………..30 ...
