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Russian competition law and economy

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No 4 (2021)
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OPENING SPEECH

ТЕОРИЯ КОНКУРЕНТНОГО ПРАВА

8-17 409
Abstract

The main directions of development of antitrust and competitive regulation of digital platforms were investigated. Approaches of legislators of individual EAEU member states to antitrust regulation of digital markets, emerging law enforcement practice were considered.

Based on the analysis of proposals for amending the Entrepreneurs Code of the Republic of Kazakhstan, the practice of antitrust rulemaking of other states, the authors formulate recommendations for developing approaches to regulating digital platforms.

Normative and expert approaches to the definition of digital platforms for the purposes of antimonopoly regulation and also modern classifications of digital market entities considered as objects of antimonopoly regulation were investigated.

The practice of antitrust regulation of digital markets in the EU, China and the USA has been investigated.

The article reflects the content characteristics of the term “gatekeeper”, introduced for the first time, which reveals the priority characteristics of the behavior of the main digital platform for creating the most balanced regime of regulatory norms in the field of antitrust enforcement.

18-25 375
Abstract

Trade legislation contains a number of antitrust bans for retail chains. Prohibitions include: antimonopoly rules for subjects of trading activity (Article 13), restrictions on the acquisition / lease of additional retail facilities by retail chains (Article 14) and others. The article examines the nature of the prohibition of Article 13, identifies the problems of applying the prohibition to create discriminatory conditions. The author analyzes the question of the application of Article 14. Based on the results of the analysis, it has been established that Article 13 applies to all retail chains without establishing their market share, which, from the author’s point of view, is incorrect. Antitrust authorities often misclassify the prohibition on creating discriminatory conditions, equating to them any discrepancy between the terms of contracts of the same retail chain with suppliers. In this case, the author proposes to analyze the commodity market, to identify the unequal position of suppliers. Problems in the application of Article 14 are due to the need to abandon the unconditional prohibition and the introduction of a permissive procedure for the implementation of transactions, abandoning the formal approach when assessing the market share of the trading network at the time of the transaction. It is also necessary to clarify the moment from which the additional retail space is considered acquired: the conclusion of the contract or the signing of the deed of transfer.

26-33 290
Abstract

The article examines the current legal mechanism for monitoring the implementation of intra-group transactions and other actions within the framework of economic concentration; the possibility of applying the appropriate procedure when exercising state control over foreign investments in strategic business companies.
The analysis of regulatory legal acts and international practice allowed the author to conclude that the introduction (by analogy with the Law on the Protection of Competition) of a notification procedure for a foreign investor to make transactions with assets of a strategic business company will not correspond to the objectives of control over foreign investments. In that connection the existing preliminary control seems to be the most effective.

TARIFF REGULATION

34-45 362
Abstract

The key aspects of the draft federal law “On the fundamentals of state regulation of prices (tariffs)” submitted by FAS Russia to the Government of the Russian Federation on June 8, 2021 following the discussion of this draft law by the working group on the implemen- tation of the “regulatory guillotine” mechanism were considered.
This draft law is an attempt to form the general part of the tariff legislation of the Russian Federation.
The article also discusses an alternative model for regulating issues related to the setting of prices (tariffs) — the codification of tariff legislation, which would take into account both general and specific or industry-specific components of tariff regulation.
As the most preferable solution to the problems considered in the article, the author proposes the simultaneous codification of competitive and tariff regulation, the result of which should be the simultaneous adoption of the Competition Code and the Tariff Code of the Russian Federation.

46-51 321
Abstract

The topic of consistency of tariffs in the electric power industry is investigated, the issues of imbalance of tariffs in the course of state regulation of prices (tariffs) in the electric power industry are considered. The regulatory instruments that allow regulators to maintain the current balance of tariffs are analyzed. Taking into account the limitations of the currently existing instruments for regulating price imbalances in the electric power industry, it is proposed to additionally introduce new information and compensatory instruments that allow creating guaranteed sources to compensate for lost income and unaccounted expenses of regulated organizations. The substantiation is provided by the existing foreign experience of creating balancing funds and pools in the countries of the European Union.

АНТИМОНОПОЛЬНЫЙ КОМПЛАЕНС

52-59 600
Abstract

The article examines the background of legislative consolidation and the main problems of the introduction by pharmaceutical companies of a new legal institution for the prevention of violations of antimonopoly legislation — antimonopoly compliance, introduced by Federal Law No. 33-FL of March 1, 2020.
The definition of the concept and a brief description of the current state and trends in the development of the pharmaceutical industry in connection with the relations of competition are given.
The necessity of introducing antimonopoly compliance by pharmaceutical companies as a relatively independent part of pharmaceutical compliance as the most general (universal) tool for self-prevention of any offenses by the company itself and all its employees in connection with official activities is substantiated.
The main antimonopoly risks associated with the implementation of pharmaceutical companies’ economic activities are named. Typical examples of violations of antimonopoly legislation by pharmaceutical companies are considered.
The results of a sample survey of pharmaceutical industry representatives conducted by the author on their attitude to the introduction of antimonopoly compliance are presented.
Proposals have been formulated to amend the Code of Administrative Offences of the Russian Federation in order to create additional incentives for the implementation of antimonopoly compliance.

60-67 521
Abstract

The article contains the best foreign practices of implementing the of antimonopoly compliance Institute (compliance) in order to identify and manage the risks of violations of competition law and the possibility of preventing these violations by companies. The article presents the definition of compliance, describes the experience of foreign competition authorities in development, organization and implementation of compliance programs. Special attention is paid to the potential benefits that business receives as part of the successful implementation of the antimonopoly compliance system, including the possibility of mitigating circumstance in case a company commits an antimonopoly offense.

PROCUREMENT CONTROL

68-75 242
Abstract

The state and trends of judicial practice are important indicators of the effectiveness of justice. Their study is a prerequisite for identifying shortcomings (gaps and collisions) of regulatory regulation, including in the field of procurement, as well as developing proposals to eliminate it or minimize the corresponding shortcomings.
The article offers the basics of the methodology of judicial practice research on disputes and cases of violations related to the application of legislation on the contract system in the procurement of goods (including works and services) for the needs of the internal affairs bodies of the Russian Federation.
The subject of the study is typical errors in the application of material and procedural norms of contractual and interrelated branches of law, the causes and conditions of violation of the principle of uniformity of the relevant judicial practice.
The authors make and substantiate proposals to improve the Methodology of comparative assessment of the activities of logistics units of the territorial bodies of the Ministry of Internal Affairs of Russia aimed at improving the efficiency of the use of budgetary funds by internal affairs bodies.

ЗАРУБЕЖНЫЙ ОПЫТ ГОСУДАРСТВЕННОГО РЕГУЛИРОВАНИЯ В СФЕРЕ ЭКОНОМИКИ

76-87 597
Abstract

The article provides an analysis of modern trends in building public-private partnership (PPP), gives an overview of key studies devoted to this subject in general and PPPs in the field of space activities in particular. The authors analyze the practice of public-private partnerships in the U. S. and Great Britain on the examples of specific mechanisms, their key features, advantages and disadvantages that determine the possibility of their application in different areas of government-business cooperation in the field of space exploration. In order to find possible ways for direct application or adaptation of this experience in Russia for organizing space exploration PPPs the researchers concluded that the level of high-tech production in this country is insufficient and significant administrative barriers for attracting private sector into the space industry are still present.

ОБЗОР

88-92 200
Abstract

Analysis of the legal positions of arbitration courts in cases of violation of antimonopoly legislation regarding the consideration of issues: the statute of limitations for bringing to administrative responsibility, the grounds for refusing to provide state preference, the consideration of complaints about the actions of bidders/operators carried out during the mandatory procedures applied in the bankruptcy case.
Objective: to develop uniform approaches in law enforcement practice in cases of violation of antitrust laws.

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ISSN 2542-0259 (Print)