Preview

Russian competition law and economy

Advanced search
No 1 (2020)
View or download the full issue PDF (Russian)
https://doi.org/10.32686/2542-0259-2020-1

ТЕОРИЯ КОНКУРЕНТНОГО ПРАВА

8-16 495
Abstract
The article analyzes the goals and methods antitrust regulation uses to prevent abuse of intellectual property rights. After tracing the emergence of antitrust restrictions against intellectual property right owners and disclosing the concept of abuse of rights as the key criterion for evaluating the integrity of the right holder the authors focus on the unfair competition prevention as an effective method to achieve balance of rights of market players and maintain competition. The authors specify legal approaches of the enforcement of article 144 of the Protection of Competition Act and outline topical issues of current judicial practice.
18-25 519
Abstract
The article addresses the conflict of private and public interests on the pharmaceutical market arising in the antitrust regulation. The authors suggest assessing antitrust interventions in establishment of rights and enforcement of laws in terms of potential errors known in economics as type I and type II errors, and negative implications of type I errors, where the innocent are punished. The examples of governmental regulation of the pricing of essential drugs, the practice of state procurement of medicines, the use of compulsory licensing institute are used to address the problem of balance between the private and the public interests, to suggest principles and mechanisms meant to reduce the number of errors in establishment of rights and enforcement of laws in order to develop more efficient model of antitrust regulation.
26-31 335
Abstract

The article discusses the issues of interpretation and applicability in competition law and in antitrust law enforcement practice of the civil law principle of good faith. The theoretical view of the concept of good faith as incompatible with the nature of public law is criticized.

The law enforcement practice in cases of violation of antitrust laws by participants of anticompetitive agreements was studied, which influenced the formation of key judicial positions related to assessing compliance with the principle of good faith by bidders. According to the results of the study, it was concluded that the civil law principle of good faith is at the same time a general principle of competition law as an integrated branch of law combining public and private principles of legal regulation.

It is noted that the use of this principle for legal assessment of the actions of participants in cartel agreements at tenders is not only an important tool to counteract cartelization of state and municipal procurements, but also a means of creating a business ethics of entrepreneurial relations in the public interest.

АНТИМОНОПОЛЬНЫЙ КОНТРОЛЬ

32-37 476
Abstract
The article describes the main development trends of antitrust regulation in the digital economy. The particularity of a digital economy era product is manifested in the value of information in the modern market, which has a direct impact on the cost of almost all goods (production processes, services). The owner of the information (the owner of the digital platform) does not have to occupy a share of the market for the production of tangible goods in order to control it, in fact, through having certain information he can control almost any tangible product market. Changing the product itself or the manner in which it is circulated necessitates the formulation of new approaches to antitrust regulation that will take these features into account for purposes of choosing the best way to protect and at the same time develop competition.

ГОСУДАРСТВЕННАЯ ПОЛИТИКА В СФЕРЕ БОРЬБЫ С КАРТЕЛЯМИ

38-41 378
Abstract

Effective investigation of antitrust offenses, including crimes, is an urgent task that requires not only deep scientific justification, but also the development of a set of practical recommendations. Regularities of the mechanism for committing antitrust offenses (including crimes), the occurrence of information about the antitrust offense (crime) and its participants, the collection, research and use of evidence and special means and methods of judicial research and prevention of violations of antitrust laws based on these knowledges at present do not fit into the framework of a private forensic technique.

The article includes the definition of the concept of antitrust forensics. Justified the need of developing an independent branch of forensic science — antitrust forensics, which includes the theoretical part, antitrust forensic techniques, antitrust forensic tactics and antitrust forensic techniques.

44-49 256
Abstract

The limits and severity of criminal liability for anti­competitive crimes in the member states of the Eurasian Economic Union (EAEU) have significant differences, despite the fact that the EAEU combines a common (single) economic space, the Model Law "On Competition" has been adopted, a single administrative responsibility for anti-competitive offenses committed in cross-border markets.

These differences are manifested, first of all, in the fact that in different EAEU member states the issues of criminalization of anticompetitive socially dangerous behavior have been resolved differently, and for similar anticompetitive crimes, punishments significantly differing in nature and gravity have been established.

The unsolved problem in the conditions of free movement of goods, finances and labor resources in the EAEU, according to the author, not only contradicts the principles of justice and equality of citizens before the law, which are enshrined in the criminal codes of all EAEU member states, but also hinders the successful economic development of the EAEU. In particular, significant differences in antitrust criminal policy can stimulate the “flow” of monopolistic criminal activity into the least rigid national jurisdictions within the EAEU.

To solve the corresponding problem, the author proposes to supplement the Treaty on the Eurasian Economic Union with provisions on the implementation of an agreed EAEU policy in order to harmonize administrative and criminal liability for violations of the antitrust laws of EAEU member states.

ЭКОНОМИЧЕСКАЯ ТЕОРИЯ КОНКУРЕНЦИИ

56-59 205
Abstract
The article contains a critical analysis of the course of economic theory for distance learning at the British Open University. The article shows that different types of markets should use different approaches of antitrust regulation.

КОНТРОЛЬ ЗА ОСУЩЕСТВЛЕНИЕМ ИНОСТРАННЫХ ИНВЕСТИЦИЙ

50-54 355
Abstract
This article explores the general concept of compliance. The necessity and potential benefits of the introduction of investment compliance by economic companies and companies — foreign investors are analyzed. The authors conclude that there are positive consequences of the adoption by commercial organizations of an investment compliance system.

OPENING SPEECH

МЕТОДОЛОГИЯ ИССЛЕДОВАНИЯ РЫНКОВ

60-69 525
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.

ПРОБЛЕМЫ РАЗВИТИЯ КОНКУРЕНЦИИ НА РЕГИОНАЛЬНЫХ РЫНКАХ

70-75 575
Abstract

А country's сompetitiveness cannot be achieved if the competitiveness of its constituent regions is low. Thus, the regions actually determine the socio-economic processes carried out in the state, and the state, in turn, adjusts the factors that determine the development of the region. The article identifies the factors that influence the development of regional competitiveness and the mechanisms for regulating these factors.

Scientific novelty: the content of the concept of competitiveness of the region is revealed, factors preventing the full and homogeneous development of competitive potential of the regions are identified, a set of measures aimed at improving the regional, in particular, and national competitiveness of the Russian economy is defined.

76-82 213
Abstract

The article discusses the problems of limiting and developing competition in the Arctic zone of the Russian Federation related to the use of a specific model for regulating entrepreneurial activity. According to the author, this model, on the one hand, requires the provision of benefits and preferences for business entities planning and carrying out investment activities in the Arctic zone, and on the other hand, the introduction of various administrative barriers that limit the choice of the order and method of doing business. The indicated barriers and restrictions in the ways of conducting business can lead to restriction of competition between participants in the same product markets (competitors). In addition, restrictions on the methods of entrepreneurial activity cannot be considered justified from the point of view of constitutional norms governing the freedom of economic activity and the grounds for introducing its restrictions.

In order to prevent the negative consequences of the implementation of the proposed model for the regulation of entrepreneurial activity by the Ministry for the Development of Russia, it is proposed to switch from an organizational and structural approach to a functional one based on the increasing ability to process large amounts of information and effective interaction with tax and other bodies.

ПРОБЛЕМЫ РАЗВИТИЯ КОНКУРЕНЦИИ НА ОТРАСЛЕВЫХ РЫНКАХ

84-91 188
Abstract
The article discusses and supports alternatives to improve the Russian regulatory system of sales allowances to pricing on pharmaceuticals , included in the Vital and Essential Drugs List; which were developed by means of analytical research in order to encourage sales of cheaper pharmaceuticals and price decreases on expensive ones. In addition, based on the world practice, possible ways of the state regulation of pharmaceutical maximum margins are highlighted and suggested the most appropriate for domestic pharmaceuticals distribution system.

ОБЗОРЫ

92-95 209
Abstract

The review contains an analysis of the legal positions of the arbitration courts in cases of violation of the antimonopoly legislation regarding the consideration of the following issues: an order of the antimonopoly body on transferring to the budget the income received as a result of violation of the antimonopoly law; non-payment of services received under the contract as an abuse of a dominant position; trust agreement as a condition for the admissibility of an anti-competitive agreement; claims of the antimonopoly body on forcing an economic entity to comply with the instructions of this body.

Purpose: the formation of uniform approaches in law enforcement practice in cases of violation of antitrust laws.

96-100 205
Abstract

Ratio of regional antimonopoly`s decisions appealed under collegial body of the Federal antimonopoly service related to the establishment of the facts of the conclusion of prohibited competition-restricting agreements exceeds the part of the other decisions.

In most cases, this is related to the issues of proving the arrangement and implementation of competition-restricting agreement, because not always certain circumstances can clearly indicate the fact of conclusion of such agreement.

The most interesting are the cases of «bid rigging» cartels, which are prohibited by paragraph 2 of the part 1 of article 11 of the Federal law "On protection of competition" (hereinafter — the Law on protection of competition). Establishing that competitionrestricting agreements in each case, all collected in the case on violation of Antimonopoly legislation of the evidence to be assessed, without which it is impossible to make an informed decision on the case, and defendants in cases usually do not agree with the competition authority of certain evidence as proof of anti-competitive agreements.



ISSN 2542-0259 (Print)