On the limits of using the "hypothetical monopolist" test (SSNIP) for antitrust regulation purposes

Abstract

In order of antimonopoly legislation applying in the area of analysis of the condition of competition in the market antimonopoly body currently uses the theory of branch markets. According to the level of standardization of a goods (services), markets are divided into markets for a homogenous goods (services) and markets for a differentiated goods (services). Goods markets which includes independent companies of suppliers (manufacturers) and consumers recognizes as «classic» goods markets if fair competition terms among the suppliers has been violated. However, the branch markets for number of commodity groups doesn’t considered as typical regardly to development of wholesale markets and resale system, trading networks and aspiration of trading objects for expansion of goods nomenclature and range.

The concept of competition as the interaction of producers of srictly homogenous goods, reflected in the Procedure for analysis of the condition of competition in the goods market, approved by the FAS Russia dated april 28, 2010 № 220, makes it difficult to determine the markets boundaries and therefore requires revision.

The author does not notes unjustified restriction absence and eligibility criteria while using probabilistic (prognostic) models as toolkit for evidence receiving when considering a case on violating of the antimonopoly legislation. Using above-stated approaches is contradiction to the basic principles of the administrative process. In particular, using the “hypothetical monopolist” test (SSNIP) to determine the market’s goods boundaries seems to be incorrect.

The article considers above­stated issues solutions ways that improves authenticity and unprejudicity of decisions in the area of antimonopoly legislation application in order to prevent and restrict the vioations of the antimonopoly legislation.