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Russian competition law and economy

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No 3 (2019)
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https://doi.org/10.32686/2542-0259-2019-3

ТЕОРИЯ КОНКУРЕНТНОГО ПРАВА

6-9 297
Abstract

The article reveals the content of the concept of imaginary competition and its negative impact on real competition.
The formal normative approach to the interpretation of the constitutional ban on monopolization and monopolistic activity is criticized.
The necessity of legislative consolidation of prohibition (prohibitions) on imaginary competition form (forms) of monopolistic activity is substantiated.

10-15 442
Abstract

The article deals with the basis and conditions of administrative liability for abuse of a dominant position in the commodity market, provided for in article 14.31 of the Code of Administrative Offences of the Russian Federation (CAO RF).
It is concluded that in establishing the dominant position of an economic entity in the commodity market, the Antimonopoly authority must establish the fulfillment of all the necessary conditions specified directly in the Federal Law on protection of competition (2006), and not only the conditions determined on the basis of the Order of the FAS of Russia dated 28.04.2010 № 220.
The admissibility of qualification under art. 14.31 CAO RF of actions (inaction) of an economic entity only after receiving notification of the Antimonopoly authority of dominance is proved.
Proposed and substantiated measures for increasing preventive orientation of antitrust regulation to all kinds of abuse by economic entities dominant position including fixing in antitrust Institute request on the proper behavior of the entity.

16-19 424
Abstract

The article discusses the issues of legislative definition and interpretation of the concept of “secret communications” by law enforcement.
The authors criticize the broad approach to the interpretation of the concept of “secret communications”.
The necessity of introducing into article 25 of the Federal Law of July 26, 2006 No. 135-ФЗ “On Protection of Competition” amended by which the antimonopoly authority will be granted the right to receive information about connections between subscribers and (or) users of communication services, as well as to supplement the new law with a new law an article governing the procedure for the communication operator to submit such information to the antimonopoly authority.
According to the authors the receipt by the antimonopoly authority of information on compounds should be carried out only on the basis of a judicial decision based on the results of consideration of a motivated application of such an authority.

22-27 281
Abstract

The problem of the abolishment of “intellectual immunities” has remained relevant for many years. According to Russia’s Federal Antimonopoly Service, the lack of antitrust control over the disposal of exclusive rights makes the Russian market vulnerable before foreign holders of intellectual rights. In fact, the regulator is entitled to impose antitrust restrictions on exclusive rights. This power is expressly stipulated by the Treaty on the Eurasian Economic Union, which still provides for “intellectual immunities” for foreign holders of intellectual rights. Therefore, the removal of these immunities from the law is a prerequisite for improvement of the antitrust regulation, which must be followed by systemic modification of the antitrust laws, in the first place, by expansion of competition assessment techniques in the field of intellectual property and by setting boundaries in respect of antitrust control, preserving the powers conferred on holders of intellectual rights.

30-35 294
Abstract

The article explores a new legal mechanism that extends the authority of the Federal Antimonopoly Service to control the implementation of foreign investments not only to business entities of strategic importance, but also to any other Russian business entities that, according to the antitrust authority, are of key importance to the Russian economics.
The problems of legal uncertainty regarding the mandatory prior coordination with the antimonopoly regulator of a transaction involving a foreign investor have been identified to differentiate legal consequences for violation of the provisions of special legislation depending on the actual presence of a threat to the defense and security of the Russian Federation.
It is concluded that it is necessary and advisable to classify it as a business entity by virtue of its implementation of a type of activity that is adjacent to a strategic one (which is part of the technological process of a strategic type of activity as an integral part of it).

36-41 244
Abstract

The article offers a description of the general algorithm for the formation of a mathematical (stochastic) model of countering cartels as a massive negative social and legal phenomenon.
The specified model allows to realize (calculate) the forecast function is a necessary element of state programs (“road maps”) to counter illegal manifestations. The formation of a mathematical model should be preceded by a stage of theoretical modeling, which establishes the constituent elements and relationships of the subject of study. It is proved that the prognostic model of the social-legal phenomenon should be based on the provisions of probability theory. A specific technique is proposed for calculating a system of stochastic indicators (mathematical expectation and standard deviation) of the corresponding model on a single methodological basis. Proposals were made for forecasting methods in relation to quantitative probabilistic models of fighting cartels. The importance of the constant (periodic) verification of the initial statistical data and the correct interpretation of the results of prediction calculations is substantiated. The directions of the practical use of the proposed model for the creation of a comparative monitoring system for the cartelization of the EAEU product markets are proposed.

ПРОБЛЕМЫ АНТИМОНОПОЛЬНОЙ ПРАВОПРИМЕНИТЕЛЬНОЙ ПРАКТИКИ

42-45 369
Abstract

The article reveals the practical aspects of implementation of antitrust compliance in a company. The author describes in detail the main stages of the implementation of antitrust compliance, focuses on the problems that may arise at each stage. The article covers the processes of internal investigations, and contains practical advice on how to conduct effective employee training.

46-53 254
Abstract

The article deals with the issues related to the presence or absence of the legal possibility of changing the conditions of the state (municipal) contract. As part of the analysis of judicial practice, the criteria and grounds for which a change in the terms of the contract can be considered as an antitrust offense, in particular, as the conclusion of an anticompetitive agreement are determined. The situations when the change of contract conditions entails violation of the principle of equality of participants in the procurement, restriction of competition in order to create more favorable conditions for the winner of the procurement contract.

54-59 300
Abstract

The article analyzes the approaches of the competition protection authorities of foreign countries to the definition of the product and geographical boundaries of the commodity market on which digital platforms in the tourism industry operate.
The practice of antimonopoly regulatory authorities ‘ application to the policy of online platforms for the establishment of “wide” and “narrow” price parity is studied. A comparison of comparable foreign and Russian Antimonopoly regulation is made.

ЭКОНОМИЧЕСКИЙ АНАЛИЗ ДЛЯ ЦЕЛЕЙ АНТИМОНОПОЛЬНОГО РЕГУЛИРОВАНИЯ

60-67 256
Abstract

The article briefly outlines key economic principles that are used for merger appraisal in Europe and the US. We consider three most typical cases: horizontal, vertical and conglomerate mergers. We explain the main positive and negative effects that typically arise in each case. We point that the analysis of structural factors (levels of industry concentration and market shares) and barriers to entry can serve only as a starting point of the merger appraisal process. Other indicators such as closeness of competition, countervailing buyer power and customer switching, counter-reactions of rivals, levels of profitability, cost savings are far more important for the analysis of merger effects on consumers and competition. In addition, we describe general economic principles with regards to merger remedies.

68-77 201
Abstract

Today, the rise in fuel prices becomes more and more notorious, and at the same time it increases the potential explosive power of the discontented of consumers masses, which notes that growth.
Simultaniously, in the conditions of globalization it is impossible to consider prices and price processes in one, separately taken economy since it exists in the conditions of the global economy which provides flows of the capital, goods, labor resources.
Thus, in this article, to answer the question whether the level of good prices (in this case — gasoline) in the economy is high, the authors offer a comparison of countries key macroeconomic indicators with similar levels of gasoline prices.

ПРОБЛЕМЫ СОВЕРШЕНСТВОВАНИЯ ФУНКЦИЙ АНТИМОНОПОЛЬНОГО РЕГУЛЯТОРА

78-83 260
Abstract

The article discusses some problems of the formation of a uniform law enforcement practice on the example of specific decisions of the FAS Russia Board of Appeals on issues related to: the application of the rules for the qualification of antitrust violations provided for in part 1 of art. 10 of the Federal Law «On Protection of Competition»; the need to prove the fulfillment of an agreement prohibited by art.16 of the same Law; the exercise of the right of the FAS Russia collegial bodies to refer the matter for a new consideration to the territorial antimonopoly body.
It is concluded that the legal positions of the Appeal Board of FAS Russia, being based on the law and applied only in compliance with the law, help to effectively resolve controversial problems of pre-trial Antimonopoly law enforcement and to develop uniform approaches to the interpretation of the rules of competition law.



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ISSN 2542-0259 (Print)