OPENING SPEECH
Competition Law Theory
In December 2023, 30 years have passed since the adoption of the Constitution of the Russian Federation. The positions of the constitutional control bodies have always played and continue to play an important role in the development of antimonopoly legislation and law enforcement practice in cases of protection of competition. In the practice of the Constitutional Court of the Russian Federation (CC of Russia) and a number of other law enforcement officers, competition is considered in the context of the constitutional value that all law enforcement officers, including antimonopoly authorities and courts, are obliged to protect. In the constitutions of a number of foreign countries, there is often no direct indication of the need to protect competition, which increases the role of the highest courts in creating a legal mechanism for its protection. The authors analyze the law enforcement practice of the Constitutional Court of the Russian Federation established after 2018 on the application of antimonopoly legislation and the influence of the positions of the supreme constitutional control body on the development of Russian competition law.
STATE REGULATION OF THE ECONOMY
Approaches to the assessment of objective price indicators are described. It is said that price antimonopoly control has various forms, but it cannot turn into price regulation. Antimonopoly price control is based on the comparison of price characteristics and conditions of comparable markets. Indicators of organized (exchange) trading can become one of the most representative indicators of the level of market prices. It is important not to limit yourself to stock quotes, but also to use over-the-counter price indicators and price indicators of comparable foreign markets. It is shown that the whole set in the "price triangle" should be applied based on the condition of their methodological comparability. It is noted that the relevant price indicators at the national level, within the framework of the EAEU and the CIS, within the framework of BRICS+ make it possible to qualitatively improve the terms of trade on national and international markets.
The authors outline general methodology for the creation of the earlier proposed system for the assessment of R&D effectiveness as the most important element of the process of monitoring scientific and technological development of Russia (collection and analysis of information, assessment of scientific and technological results, scientific and technological forecast, R&D planning and financing) and of the strategic planning of scientific and technological sphere of the country. The attention is focused on the content of the introduced into the system characteristics of R&D results obtained in the country. Practical implementation of the system would improve the effectiveness of the domestic R&D sector, stimulate the innovative development of the country, increase the efficiency of the national economy and the quality of life.
The purpose of the work is to create the most complete list of characteristics of R&D results included into the R&D assessment system.
The list of such characteristics includes the initially introduced data regarding an R&D result (type, authors, year of getting the result, etc.), as well as the assessments received during a double examination: by expert scientists and leading scientific organizations in the given scientific field or educational institutions. In addition, the characteristics of scientific and technological results should include data that may be required by users of the system both being and not being subjects of scientific and technological activities: state, regional and municipal authorities; monitoring systems of intersectoral complexes, industries and organizations; R&D products’ customers. The authors also proposed possible approaches to financial support for the functioning of the system and monitoring of the effectiveness of the Russian scientific and technological development, which may become the basis for the operation of the proposed system. In solving problems the authors relied on verbal modeling approaches, while for decomposing tasks of consumers of scientific and technological activities - on methods of program-target planning.
REGULATIO OF PROTECTION AND DEVELOPMENT OF COMPETITION
The article highlights some conflicts and gaps in the legal regulation of the activities of digital platforms, in particular marketplaces. Currently, in the field of e-commerce, a situation has arisen in which digital platforms (marketplaces) have ceased to play the role of exclusive information intermediaries, transmitting information about the product from the seller to the buyer with remote communication between them under sales contracts. In the doctrine of competition law, the classical approach is generally accepted, according to which an economic entity dominating a market may fall under the criteria of abuse of a dominant position. The "Fifth Antimonopoly Package" makes it possible to improve doctrinal approaches to the establishment of abuse of a dominant position by special subjects. The positions of the FAS Russia, which appeared in connection with the need to regulate complex relations to protect competition in commodity markets, where there are signs of “network effects”, have an important role for the exercise by antimonopoly authorities of powers to intersect monopolistic activities in commodity markets and the formation of a uniform approach in law enforcement practice in cases on violation of antitrust laws by owners of transactional digital platforms. New approaches to the application of relevant legal regulation, including in related markets, have been identified based on the results of an analysis of the norms of antimonopoly legislation, legislation on trading activities and specific decisions of the antimonopoly authority related to the application of Article 101 of Federal Law of 26. 07. 2024 No. 135-FZ “On Protection of Competition”.
Author carries out the analysis of recent legislative changes on the regulation of anticompetitive transactions involving economic concentration and improvement of the procedure for state control over economic concentration. The will of the legislator and the reasons that contributed to the development of legal regulation on the issue under consideration, as well as its economic and legal consequences, are examined. Based on the results of studying the current law enforcement practice that developed after the entry into force of legislative changes, author identifies and systematizes the most common torts related to the facts of transactions involving economic concentration that restrict competition, as well as significant violations of the procedure for such transactions established by the current antimonopoly legislation.
ANTITRUST ENFORCEMENT PRACTICES
The purpose of the article to the study of the legal nature of the institution of issuing a warning by an antimonopoly authority to stop actions (inaction) that contain signs of violation of antimonopoly legislation, as well as procedural ways of its challenge.
As a result of the analysis of the current legislation and law enforcement practice, the authors identified a number of problems arising in the process of judicial challenge of the warning, namely the length of the court procedure and the use of a formal approach in the consideration of this category of cases. The authors conclusions point to the expediency of enshrining the possibility of challenging a warning in an administrative procedure by expanding the powers of the collegial bodies of the FAS of Russia.
TARIFF REGULATION
International and Russian experience in the application of regulatory contracts (agreements) in the sectors of communal infrastructure (housing and communal services) was investigated. Various models of regulatory agreements were analyzed. Prospects for the development of the concept of regulatory agreements in Russian legislation, including issues of tariff regulation within the framework of regulatory agreements, were considered. Conclusions were drawn regarding the prospects for introducing regulatory agreements in the communal infrastructure in Russia.
COMMODITY AND FINANCIAL MARKETS
The article is devoted to the consideration of promising areas of improvement of antimonopoly antitrust provisions of the Federal Law “On the Fundamentals of State Regulation of Trade Activities in the Russian Federation” of December 28, 2009 № 381-FZ, as well as a number of other related rules of trade activities. Based on the results of the analysis, the authors conclude that despite the presence in the legislation of special antimonopoly requirements for retail chains and suppliers of food products, indicating the special attention of the legislator to the issues of ensuring legality in food markets, it is advisable to make a number of amendments to certain provisions of the relevant legal norms. Also, taking into account the changes observed in the retail trade markets in recent years, the authors note that the next stage in the evolution of antimonopoly requirements in the sphere of trade may be the legislative regulation of the rules of trade via the Internet.
Regulation of Advertising Activities
Monitoring and supervision of compliance with advertising legislation, including requirements related to the definition of certain information as advertising, is attributed to the powers of the Federal Antimonopoly Service. The provisions of the current legislation on advertising don't apply to information organically integrated into works of culture, science, and art, which is an opportunity to avoid administrative liability in case of detection of signs of violation of advertising legislation. In this case, the key question becomes when information is considered organically integrated and how to distinguish it from advertising. The authors propose and justify criteria for distinguishing advertising and information messages, taking into account the long-term practice of the FAS of Russia and the courts.