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Russian competition law and economy

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No 3 (2022)
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EDITOR’S COLUMN

STATE REGULATION OF THE ECONOMY

8-21 521
Abstract

The concepts of “public power”, “model of economy”, “model of economic development”, “model of public management of the economy” are considered, the definition of the concept of the model of public management of the economy is formulated as simplified to the most essential elements of the description of the economic management system using the tools of public power.
Such basic elements of the system of public management of the economy as the public apparatus (institutional element) and the system of rules of economic behavior (definitions, prescriptions, permits, restrictions, prohibitions), clothed in the form of normative legal acts (normative element), are identified and described.
Attention is drawn to the “cloudy” (uncertain) nature of the existing system of public management of the economy in Russia, due, in particular, to the absence of a register of state and municipal institutions, non-governmental and non-municipal organizations to which certain powers of state authorities or local self-government are delegated (including powers in the field of economics). According to the author, the uncertainty of the boundaries of the public administration system hinders effective control over the exercise of powerin the field of economics, accurate assessment of the real “administrative pressure” on business, reform of the public administration system of the economy.
The underestimation of the role of courts as an important part of the system of public management of the economy is noted. The necessity of endowing the Supreme Court of the Russian Federation with the authority to give an interpretation of normative legal acts mandatory for all law enforcement officers, with the exception of issues referred to the competence of the Constitutional Court of the Russian Federation is substantiated.
It is concluded that the administrative reform carried out in Russia in 2003—2004 did not ensure the achievement of the goals of increasing the efficiency of public management of the economy. The main reason for this was the disregard of the cultural experience of the country (including the real ethics of power relations), as well as the provisions of the theory of management relating to the criteria of expediency and independence of control. With a threefold decrease in the number of inspections of economic entities conducted by all categories of public control bodies in the period from 2013 to 2021, the number and number of personnel of control and supervisory bodies (including their territorial bodies) remained the same. In order to achieve the goals of optimizing the control and supervisory system, it is proposed to assess the feasibility of forming a control branch of government subordinate directly to the head of state and the law. A discussion is proposed on the possibility of achieving the goals of optimizing the system of public management of the economy based on the integration of institutions of self-regulation and compliance.
The idea of reducing the volume, gap and inconsistency of economic legislation by creating a set of laws and codifying a number of its complex industries (including competitive, contractual, tariff, and business) is formulated.

STATE AND MUNICIPAL PREFERENCES

22-27 482
Abstract

The article considers the legal consequences of the unlawful provision of state and municipal preferences in violation of Chapter 5 of Federal Law No. 135–FZ of 26.07.2006 “On Protection of Competition”. According to the results of the research, it is concluded that the unlawful provision of preferences may entail various, including civil law, consequences for both public authority (an organization or body performing the functions of a public authority) and an economic entity — the recipient of the preference.

REGULATIO OF PROTECTION AND DEVELOPMENT OF COMPETITION

30-37 300
Abstract

The author analyzes the provisions of the Procedure for analyzing the state of competition in the commodity market, approved by order of the FAS of Russia dated 28.04.2010 No. 220, and comes to the conclusion that, that in accordance with the Procedure for Market Analysis Methods in retrospective and prospective periods do not differ from each other, despite the fact that the market in the retrospective period is characterized by actual indicators, and the market indicators of the prospective period should include forecast elements. In essence, these are different markets with different structures and prices. Failure to take into account the specifics of these markets, in particular, the requirement of the Procedure on the application of the hypothetical monopolist test in the analysis of the retrospective period market, leads to a decrease in the level of validity of the analysis and does not meet the requirement of irrefutability, arising from the rule of Part 4 of Art. 45.1 of the Law on Protection of Competition, according to which the results of the analysis of the state of competition conducted in order, established by the federal antimonopoly authority, refer to written evidence in the case.

The author concludes that it is necessary to make changes and additions to the Procedure that reflect the specifics of market analysis in the retrospective period.

COMMODITY AND FINANCIAL MARKETS

38-41 599
Abstract

The article is devoted to the study of the role of competition law in the development of the hospitality industry in Russia in the first half of 2022. We considered the issue of regulating prices for services, the basic principles of dynamic pricing in the hospitality industry, as well as the peculiarities of the control of this industry by the state. Based on the findings of the study, a way to increase the transparency of pricing by developing a provision on dynamic tariffs in the hospitality industry is proposed.

ЗАКУПКИ И ТОРГИ

42-56 302
Abstract

The article deals with the actual problems of state regulation of the contract procurement sphere, caused by the global financial crisis and sanctions imposed against Russia by the EU countries and the United States. The place and role of the state and corporate procurement system in the Russian economy, its impact on the budgetary efficiency of the state are analyzed. The main trends in the development of the world economy and its impact on the Russian procurement system are considered. Systematized state support measures for the contract system in March-April 2022, analyzed their impact on the competition development in the procurement field. A critical analysis of the factors that reduce the measures effectiveness was carried out.

58-71 625
Abstract

The article deals with the actual and important issue of maintaining a balance of interests of the customer, as well as the principles of the contract system in the field of procurement of goods, works, services for state and municipal needs, such as stimulating innovation, procurement efficiency, implying the priority of providing state and municipal needs through the purchase of innova. In practice, it is often judged only by the number of participants in the competitive procedure, often acting as resellers of the same product, which does not allow the customer to actively stimulate innovation. The principle of ensuring competition is one of the principles of the contract system: the contract system in the field of procurement is aimed at creating equal conditions for ensuring competition between participants in procurement. In 2022, significant changes came into force in the law 44-FZ “On the contract system”, including in terms of conducting competitive procurement procedures. The scientific novelty of the work lies in the study of various aspects of maintaining the balance of interests of the customer and protecting competition in procurement activities in the context of changing the legislation. The work uses general scientific research methods: comparison, analysis and the method of expert assessments.

The article is aimed at analyzing the balance of interests of the customer, as well as the principles of stimulating innovation, the efficiency of procurement and the principle of ensuring competition and developing recommendations in this area.

72-79 325
Abstract

The contract between the state customer and the contractor (supplier) is considered in the article, on the one hand, as a stage of making a management decision in the procurement process, and on the other hand, as an element of its control mechanism. The author structures the reasons for non-fulfillment of the contract, the costs associated with its implementation, considers its role and main features. A detailed study of the parameters of the types of purchases identified on the basis of the author’s classification allowed to justify the need for an individual approach to contract development in a number of them. For this purpose, the author has developed and presented in the article an algorithm for determining the need for an individual approach to the development of a state contract, the justification of the importance of the stage of concluding a contract in the process of procurement control by the customer is given. The approach proposed in the article to the organization of customer control is necessary for effective procurement management and is aimed at reducing risks and the number of terminated contracts.

TARIFF REGULATION

80-87 400
Abstract

Based on the analysis of the problem of redistribution of cross-subsidization, the article organizationally and economically justifies the need to introduce a mechanism for its “smoothing” between the subjects of the Russian Federation. A critical assessment of the formation of a negative cross-subsidization value is given, contradictions and inconsistencies in the regulatory legal acts of the current legislation are shown, the causes and consequences of uncontrolled growth in cross-subsidization at the regional level and at the level of the national economy are named. The official methodology for calculating the amount of cross-subsidization is described, its diasadvantages are shown. The schedule of bringing the rates of cross-subsidization to an economically reasonable level is proposed, which allows preventing a sharp increase in tariffs for certain categories of consumers and reducing social tension in certain subjects of the Russian Federation. The concept of creating unified energy zones has been developed, the implementation of which implies a three-stage transition to the use of a mechanism for “smoothing” state regulation of prices (tariffs) for electric power transmission services. Based on the conducted research, it is concluded that the formed common economic space allows to reduce cross-subsidization and contributes to increasing investment attractiveness and development of regions with a low level of socio-economic development.

EXPERIENCE OVERSEAS

88-95 423
Abstract

The article is about to the analysis of the legal foundations of antimonopoly compliance programs of economic entities, the latest changes in the legislation of the Republic of Kazakhstan in the antimonopoly regulation related to antimonopoly compliance. The main purpose of the study is a scientific analysis of the specifics of changes in Kazakhstan’s legislation in 2022. To achieve this goal were studied: the concept of antimonopoly compliance; corresponding changes in the antimonopoly legislation of Kazakhstan in 2022; the practice of implementing antimonopoly compliance in economic activity, — and the main directions of development of antimonopoly compliance in Kazakhstan are formulated and substantiated.

ANTITRUST ENFORCEMENT PRACTICES

96-105 575
Abstract

This article reveals the modern attitudes of the Federal Antimonopoly Service applied by the agency when considering cases of violation of antimonopoly legislation in cases of unfair competition.

The attitudes of the FAS Russia often play a significant role both for territorial agency (OFAS) and for courts in cases of violation of antimonopoly legislation. The cases considered by the Collegial Bodies of the FAS Russia are essential for the development of antimonopoly law enforcement practice and maintaining its consistency.

In order to more fully and practically disclose the current positions of the FAS Russia on various issues of antimonopoly enforcement, the article will consider some examples of cases considered by the agency in the 2nd quarter of 2022.

ОБЗОРЫ

106-110 216
Abstract

Analysis of the legal positions of arbitration courts in cases of violation of antimonopoly legislation in terms of consideration of issues: antimonopoly control over the sale of property in bankruptcy proceedings, restrictions on retail chains in the acquisition, lease of additional areas of retail facilities, imposition of unfavorable terms of the contract.

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



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ISSN 2542-0259 (Print)