EDITOR’S COLUMN
ТЕОРИЯ КОНКУРЕНТНОГО ПРАВА
The influence of the constitutional novels provided by the Law of the Russian Federation № 1-FKZ on the amendment to the Constitution of the Russian Federation dated March 14th, 2020 on the development of antimonopoly regulation and law enforcement is considered. A change in the official position on the issues of assessing the behavior of economic entities in the field of competition protection was noted, including the rejection of a formal approach in favor of an approach designed to take into account the goals, objectives and specifics of antimonopoly regulation on the basis of the norms of Articles 1–3 of the Law on Protection of Competition. The new approach is reflected, in particular, in paragraph 1 of the Decree № 2 of the Plenum of the Supreme Court of the Russian Federation dated March 4th, 2021.
According to the author, part of the general response of our country to the sanctions policy against the Russian economy should be a change in the antimonopoly regulation with new constitutional provisions.
UNFAIR COMPETITION
The activities of the Federal Antimonopoly Service to combat unfair competition are one of the important areas for ensuring the development of the country's economy. The emergence of new types of unfair competition requires updating and methods of combating it. The research methodology is based on the use of such theoretical models of state control as a punitive model, a model of cooperation, a model of procedural fairness and a risk-oriented model, as well as methods of strategic and project management, organizational and structural reform. The activities of the FAS Russia to suppress manifestations of unfair competition, cartels, anti-competitive agreements with the participation of authorities, including using digital technologies, were studied.
Proposed and justified measures aimed at simplifying the procedure for submitting applications of citizens to the FAS Russia; strengthening public control; protection consumer from manifestations of unfair competition.
ГОСУДАРСТВЕННАЯ ПОЛИТИКА В СФЕРЕ КОНКУРЕНЦИИ
The article is devoted to the analysis of the manifestations and consequences for Russian science of the phenomenon of monopolization by a narrow group of foreign economic entities (the collective dominant in the information technology sphere) of the global R&D markets, scientific publications and services that provide them, including services for access to aggregated scientific data and analytics, etc.).
It is concluded that the key tool for monopolizing the relevant markets is lobbying the interests of the collective dominant in international organizations and state authorities representing the interests of competitors, establishing direct and indirect control over market entry barriers for all other participants.
According to the authors, the bad faith of global competition on the part of foreign participants in collective dominance in relation to Russian scientific and educational organizations in the respective markets is manifested primarily in the absolute and relative “leakage” of the most qualified scientists and specialists from the country, as well as the results of scientific activity. This was facilitated by the introduction into the regulatory practice of the country of the so-called “international” standards of scientific publication activity, reporting, performance of scientific qualification works, global competition of economic entities in the scientific and educational sphere.
The authors propose and justify a number of measures aimed at overcoming the dependence of Russian science and higher education on the negative impact of global unfair competition in the relevant field. The basis of these measures should be the development of a new national (mainly expert) system for assessing the effectiveness of scientific activities, the effectiveness of scientific and educational organizations, which would be focused on ensuring sustainable development, security and sovereignty of the country, strengthening the spiritual and moral health of the nation and increasing the well-being of its citizens
COMMODITY AND FINANCIAL MARKETS
The current Procedure for analyzing the state of competition in the commodity market [10], operating on the concepts of retrospective and prospective analysis, does not note the difference between these studies, in particular when determining the product boundaries of the market and identifying interchangeable goods. The fair statement that the definition of product boundaries of the commodity market is based on the buyers’ opinion on the interchangeability of goods constituting one commodity group is not supported by a reflection of the difference in methods of identifying this opinion for retrospective and prospective periods. For any period, this type of methodology is assumed to be the same and relies heavily on the study of contractual and regulatory materials; all-Russian classifiers; commodity dictionaries or product reference books; expert opinions, since conducting consumer surveys gives reliable results for a small number of consumers, and with an increase in their number, sample surveys significantly depend on the representativeness of the sample, which, especially with an indefinite circle of people, is quite difficult to ensure. Therefore, there is always doubt that the sample produced contains all the main features of the population from which the sample is extracted, and these features are represented in approximately the same proportion or frequency as the feature appears in the population. This fully applies to the consumer market, the analysis of which during the sanctions period is becoming more and more relevant.
The author points out the presence of problems related to the lack of delineation of market analysis methods in retrospective and prospective periods and proposes a solution to the problem of an adequate retrospective analysis of the state of competition arising from this circumstance, which is in demand when initiating cases on the grounds of violation of a number of norms of the Federal Law “On Protection of Competition”.
The author connects the ways to solve this problem with taking into account the statistical probability of purchasing goods and replacing the office analysis of interchangeability with the study of the behavior of the entire mass of buyers on the market without conducting sample surveys.
This solution, as the author points out, is true only for a large number of buyers, which is quite well implemented in consumer markets.
ТОВАРНОЕ РЕГУЛИРОВАНИЕ
The problem of utilization firm municipal and municipal solid waste (and MSW) and rational use of secondary raw material resources in the conditions of the outlined transition to economy of the closed cycle is considered. The analysis of this problem made it possible to identify the insufficiency of currently used measures, including market instruments that stimulate the use of more effective methods of waste processing. The need to create a national exchange of secondary resources as a promising trading platform, an instrument for market regulation of prices for secondary raw materials, a mechanism of interaction between authorities, the business sector and the population is justified. The main functions of the secondary resource exchange and its advantages are described, an analysis of the likely barriers to its creation and highly efficient functioning is carried out.
The problems of disposal of sewage sludge following the issues of municipal solid waste disposal have become the subject of intense scientific discussion in the professional community. The relevance of the topic is due to the annual increase in the volume of wastewater and, accordingly, its precipitation, a significant part of which is not processed, is drained directly to sludge sites (often to unprepared soil), threatening a significant deterioration in the environmental situation.
The authors analyze the practice and problems of regulating relationships related to the management of wastewater sludge, as well as related issues of tariff regulation; proposals on amendments to tariff legislation in the part related to water disposal are formulated and substantiated.
ЗАКУПКИ И ТОРГИ
The article considers the issue of forming the initial (maximum) contract price (NMCC) related to the supplier’s expenses for paying taxes, fees, mandatory payments, logistics and other costs when purchasing goods (works, services) for state and municipal needs. One of the principles of the contract system is the principle of ensuring competition: the contract system in the field of procurement is aimed at creating a level playing field to ensure competition between procurement participants. For this purpose, value added tax (VAT) must be taken into account when justifying the initial (maximum) contract price. When forming a draft contract and signing it, it is clear that the contract price includes all taxes, including value added tax. If the winner of the procedure is a subject who does not pay value added tax (for example, due to a simplified taxation system) – the contract price is not reduced, it, as indicated in the Federal Law of April 5, 2013 № 44-FZ «On the contract system in the field of procurement of goods, works, services to meet state and municipal needs» (Law № 44), is firm. In this case, the tax amount will be the profit of the counterparty.
Significant attention is paid to the study of procurement practices after a number of significant changes were made to Law № 44 in 2022.
The purpose of the article is to develop recommendations for customers that allow making purchases with the greatest efficiency and number of participants (including by optimizing the calculation of the NMCC) to promote competition.
ANTITRUST ENFORCEMENT PRACTICES
The article contains a legal analysis of the price parity clause. Its types from the point of view of Russian and foreign competition law. A number of decisions of Russian and foreign courts, antimonopoly regulators made on the basis of antimonopoly investigations against owners of digital platforms who used the clause on price parity in entrepreneurial activities were considered. A comparative analysis of these decisions was carried out to identify similarities and differences in approaches to the legal qualification of the actions of the owner of the digital platform on the use of the price parity clause. In particular, in the countries of the European Union, antitrust regulators and courts have qualified the relevant actions of the owner of the digital platform as a violation of the legislative ban on the conclusion of vertical agreements restricting competition. The Russian antimonopoly regulator and the courts qualify the actions of the owner of the digital platform as a violation of the ban on abuse of dominant position in the relevant commodity market.
The article also considers the approaches of Russian and foreign competitive departments, courts to determine the boundaries of commodity markets, the participants of which are the owners of the digital platform.