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Moscow Institute of Humanities and Economics

Kirov branch

Faculty of Law

in the discipline "Legal regulation of competition"

Subject: Monopolisticactivity

Completed by a 4th year student

correspondence reduced department

recruitment September 2012

duration of study 3 years

Loginov Sergey Evgenievich

Checked by: Dmitry Alekseevich Ovsyukov

Kirov, 2015

Content

• Introduction
• 1. Monopolies: concept, types
• 1.1 The concept of monopoly
• 1.2 Forms and types of monopolies
• Conclusion
• Bibliography

Introduction

In a perfectly competitive market, there are enough sellers and buyers of a product, and therefore no single seller or buyer can influence the price of the product. Price is determined by market rules of supply and demand. Firms take the market price as given when deciding how much to produce and sell, and consumers take it as given when deciding how much to buy.

The object of study of this work is monopoly. Monopolies are large economic associations (cartels, syndicates, trusts, concerns, etc.) that are privately owned (individually, group or joint stock) and exercise control over industries, markets and the economy on the basis of a high degree of concentration of production and capital in order to establish monopoly prices and extraction of monopoly profits. Dominance in the economy serves as the basis for the influence that a monopoly has on all spheres of a country's life.

The problems of monopolization of economic life and competition in commodity markets today attract the close attention of not only specialists, but also the general public. The attitude of the public and the state towards various forms of monopolies is always ambivalent, due to the contradictory role of monopolies in the economy. Monopolies limit output and set higher prices due to their monopoly position in the market, which causes irrational allocation of resources and increases income inequality. Monopoly reduces the standard of living of the population. Monopolistic firms do not always make full use of their capabilities to ensure scientific and technological progress (STP). Monopolies do not have sufficient incentives to increase efficiency through scientific and technical progress, since there is no competition.

In our country, whose industry inherited from the command-administrative system of the former USSR a whole complex of monopolistic giants, the problem of demonopolizing the economy and preventing the strengthening of the role of monopolies already operating in the market becomes especially important.

The study of monopoly markets is relevant for making economic decisions on various issues.

The purpose of this work is to most fully illuminate and analyze the most important features, forms and types of monopolies, as well as the main methods of combating them and the features of the antimonopoly policy of the Russian Federation in modern market relations.

monopoly antimonopoly policy legislation

1. Monopolies: concept, types

In the modern market, a situation often occurs when one company completely controls the supply of one product, since for the buyer there is no more or less close, interchangeable product with it.

Monopoly - (from the Greek mono - one, poleo - sell) an exclusive right in a certain area of ​​the state, organization, company. Turning to a monopoly, it should be considered as a certain type of economic relationship, which allows one of the participants in these relationships to dictate their terms on the market for a certain product.

Monopolies have been known for a long time. They existed both in the ancient world and under feudalism, and they expressed the possession of some exceptional economic advantage in a given economic system. But in those days they were not a typical phenomenon, but simply an exception. In the 20th century they became widespread. With the advent of monopolies, competition is waged between monopolies and outsiders (enterprises not included in monopolistic associations), as well as within monopolies.

1.1 The concept of monopoly

Monopoly is a complex, multifaceted phenomenon, therefore, when determining it, it is advisable to use an integrated approach. As a rule, a threefold definition of monopoly is used, namely monopoly is defined as:

· such a market structure or market situation when there is only one seller of any product (in the absence of substitutes for this product) and many buyers (it is no coincidence that “monopoly” translated from Greek literally means “I sell one”);

· exclusive right to carry out any type of activity, granted only to a certain person, group of persons, or state;

· a large company, a corporation that unites several companies and thereby achieves a position in the market for a certain product or group of products, when the market has only one seller and many buyers.

Monopoly as a type of market structure has the following features:

- there is only one company on the market and many buyers of its products;

- there are no products that can serve as competitors to those offered by this company;

- full control of the monopolist over the price of goods and sales volume;

- the presence of certain barriers to entry of other firms into the market.

Dominance in the market makes it possible to set monopoly prices and receive monopoly profits. Monopolies sell their goods at monopolistically high prices, and buy the goods they need at monopolistically low prices.

An enterprise can produce either one type of product or many of its types, but in any case, it will be considered to occupy a monopoly position only for that type of product for which there are completely no competing manufacturers.

Since a monopoly firm, like any other firm, strives to obtain high profits, when deciding on the selling price, it takes into account market demand and its costs. Since the monopolist himself determines the market price, he cannot consciously behave like a perfect competitor and accept the price as unchanged. Instead, it takes as constant the entire downward-sloping market demand curve. In other words, the monopolist does not adapt to the equilibrium conditions that arise in the market as a result of the interaction of supply and demand. Quite the contrary, the monopolist creates the market equilibrium himself. He does this by choosing the price-to-production ratio that can bring him the greatest profit at his level of production costs.

Unlike a perfectly competitive firm where marginal revenue and price are equal, in the case of a monopoly the price curve coincides with the market demand curve, and the marginal revenue curve lies below it. This happens because the monopolist is the only manufacturer of products on the market and a representative of the entire industry; when he reduces the price of products to increase sales volumes, he is forced to reduce it for all units of goods sold, and not just for the next one. Since the monopolist makes a decision on the volume of production, leveling marginal revenue and marginal costs, the price and quantity of products produced will be different than under conditions of competition, namely: he will sell products at a higher price and produce them in smaller volumes than under perfect conditions. competition.

Monopoly price is a special type of market price, established under the influence of not only supply and demand, but also the dominance of monopolists in the market for a given product. The monopoly price is higher than what would have been established in the absence of the monopoly. It is in the price that the benefit of a monopoly position is realized. The peculiarity of the monopoly price is that it deliberately deviates from the real market price, which is established as a result of the interaction of supply and demand. The benefit of the monopolist is ensured at the expense of the consumer or small producer: the first overpays, and the second does not receive the share of the product due to him. Thus, the monopoly price is a certain “tribute” that society is forced to pay to those who occupy a monopoly position.

The monopoly price redistributes the product between economic entities, but such a redistribution that is based on non-economic factors. But the essence of the monopoly price is not limited to this - it also reflects the economic advantages of large-scale, high-tech production, ensuring the receipt of excess product.

Typically, large firms or powerful manufacturing companies have monopolistic power.

It is very difficult to capture a market and become a monopolist on it, but to keep this market in your hands is even more difficult. There are three types of barriers that prevent new competitors from entering monopolized markets and changing the situation there for the better for buyers:

1) Legal barriers. The most ancient forms of such barriers were monopoly rights, which were appropriated by the right of the strong rulers and which over time became known as state monopolies. Legal restrictions are presented in the form of license, copyright, trademark, patent:

- License- this is the right of a company to exclusively carry out a certain type of activity in a given market.

- Copyright right controls the sale and distribution of the original work in the interests of its author; it is valid throughout the life of the author (and for another 25 years after his death in the interests of his heirs).

- Commodity signs- these are special symbols that allow you to recognize (“identify”) a product, service or company; competitors are prohibited from using registered trademarks, counterfeiting them, or using similar ones that confuse consumers.

- Patent- a certificate certifying the exclusive rights of the author to dispose of the good (technology) created by him; If a company has a patent for the technology of producing a product, then this makes it impossible for other companies to produce this product during the validity period of the patent.

2) Natural barriers. In some cases, the birth of a monopoly turns out to be almost inevitable for purely objective reasons. The barriers that give rise to monopolies are natural, i.e. naturally inherent in a particular market.

3) Economic barriers. Such barriers are erected by monopolistic firms themselves or are a consequence of the unfavorable general economic situation in the country.

1.2 Forms and types of monopolies

Monopoly has various forms: corner, cartel, syndicate, industry holding, trust, concern, consortium, conglomerate.

Corner - a method invented by German merchants back in the 16th century. The meaning of this method is simple: merchants or manufacturers enter into a secret agreement to buy or temporarily withdraw a product from the market in order to artificially create a shortage and cause prices to rise. After which the goods from the reserves are thrown onto the market, and the participants in the conspiracy receive increased income. For example, in 1931 members of the International Tin Cartel organized a tin corner. They bought huge amounts of tin and created a rush of demand for it, which in turn caused a sharp rise in prices. Having achieved this, the corner participants sold their metal reserves a year later at a huge profit.

Cartel - agreement between enterprises of the same industry on sales volumes, prices, sales markets, and distribution of profits. However, the cartel agreement did not concern the production and, especially, supply and sales activities of the enterprise. Regulation of such a monopoly is usually carried out through quotas and the definition of sales areas. A typical cartel is the Organization of Petroleum Exporting Countries (OPEC), which includes 14 countries producing about 70% of the oil. It sets not only uniform prices for oil, but also distributes quotas for its production.

Syndicate usually represented by an association of enterprises, characterized by the fact that the distribution of orders, the purchase of raw materials, and the sale of manufactured products are carried out through a single sales organization. The syndicate participants are industrially independent from each other, but in commercial terms they do not have freedom of action. The organizational and legal form in which syndicates operate is multifaceted. It could be a joint stock company, limited liability company, etc.

ABOUTtraslevoy holding- a method that consists in buying up controlling stakes in competing firms and thereby establishing economic control over them in order to implement a unified monopoly policy of sales and prices.

More complex forms of monopolistic associations arise when the process of monopolization extends to the sphere of direct production. On this basis, such a higher form of monopolistic associations as a trust appears. Trust is an association in which participants are deprived of their production and commercial independence. The trust is managed from a specially created single center. The profit received from the results of the economic activities of this organization is distributed in accordance with the share participation of its member enterprises. At the same time, a distinction is usually made between a single-industry trust and a combined, multi-industry trust, when the association captures enterprises of another industry. A combined trust, uniting enterprises from different industries, gets the opportunity to extract additional profit, firstly, through the use of by-products and waste from another industry, and secondly, through the organization of vertical combination, when one enterprise processes raw materials, another manufactures parts from them, the third turns them into goods, etc. In modern economic life, this form of monopoly organization of production is extremely rare.

One of the complex forms of monopolistic associations is concern. As a rule, it includes enterprises from various industries, transport, trade and banking. Such an association is being undertaken in order to reduce inter-industry competition through a single, centralized management of production, supply, sales of goods, planning of its actions to introduce new technology and a long-term strategy for general actions in the future. An important feature of the concern’s activities is, on the one hand, strict internal financial control, and on the other, the economic independence of firms, departments, branches and decentralization of management across main product groups and territories. Its goal is to specialize and integrate its enterprises into a single economic complex. It is believed that a concern is the most developed form of association of enterprises, based on common interests and carried out through a system of participation and financial ties.

Consortium - a temporary union of economically and commercially independent producers whose goal is to implement specific economic projects. The consortium is formed on the basis of an agreement between the participants, which stipulates the share of each of them in the costs, as well as the forms of participation of the project organization, and other conditions for modern activities. Russian practice in recent years shows that each member of the consortium bears property liability within 10% of its share in the order, and amounts exceeding this value are divided among other members in proportion to their share of participation. Participants in the consortium can be legal entities and individuals, private and public organizations, and the state itself. The consortium is headed by one of its members, whose functions are specified in the agreement.

Conglomerate is called a merger of firms operating in non-overlapping market segments. This form of monopoly organization is characterized by a high level of decentralization of management, within which production units have fairly broad autonomy. A conglomerate is one of the modern forms of monopolistic associations that arose in the United States in the early 1960s.

The market is dominated by entrepreneurial, state and natural monopolies. Entrepreneurial monopolies are the most common. They arise as a result of successful competition. There are two paths to this. The first is the successful development of the enterprise, constantly increasing its scale through the concentration of capital. The second (faster) is based on the processes of centralization of capital, that is, on the voluntary merger or absorption of bankrupt winners. But, as a rule, such monopoly is temporary. Sooner or later you have to give way to even more successful competitors.

State monopoly is expressed, on the one hand, in granting individual firms the exclusive right to carry out a certain type of activity, for example, the production of alcoholic beverages, the export of gold, and furs. On the other hand, these are organizational structures for state-owned enterprises, when they are united and subordinate to different ministries and associations. Here, as a rule, enterprises of the same industry are grouped. They act on the market as one economic entity and there is no competition between them. The economy of the former USSR was one of the most monopolized in the world. It was the administrative monopoly that was dominant there.

Modern Russia maintains the presence of the state in industries that are strategically important for the country. The state's share in stakes in various enterprises varies by industry and main sectors of the economy. Most companies with government participation are in industry, transport, communications and R&D.

TO natural monopolies include industries and enterprises in relation to which the development of competition is impossible, ineffective and inappropriate. They arise in industries where one firm or corporation serves the entire market, for example when it owns the only sources of minerals or raw materials. Also, a natural monopoly arises in those areas where copyright is in force, since the author is a monopolist by law.

There are two types of natural monopolies:

- natural monopolies. The birth of such monopolies occurs due to barriers to competition erected by nature itself. The law protects the rights of the owner, even if he ultimately turns out to be a monopolist (which does not exclude regulatory intervention by the state in the activities of such a monopolist)

- technical and economic monopolies. Their occurrence is dictated by either technical or economic reasons associated with the manifestation of economies of scale.

Large natural monopolies in the Russian Federation are the companies Gazprom, RA0 UES, and Russian Railways. Occupying only 4% of workers and employees, these three monopolies provide 13.5% of GDP, 20.6% of investments, 16.2% of profits, 18.6% of tax revenues of the consolidated budget of the Russian Federation. The role of Gazprom is especially great due to its export potential: it provides more added value than RAO UES and Russian Railways combined, employing only 300 thousand workers, and profits and taxes are twice as much as them.

The existence of natural monopolies is explained by a special effect associated with the scale of production - the effect of saving resources as a result of the consolidation of production. Due to better technical equipment and greater power of a large enterprise, labor productivity increases, which means a decrease in costs per unit of production. This means more efficient use of resources. The macroeconomic aspect of the problem is also important. Infrastructure networks, which are natural monopolies, ensure the interconnection of economic entities and the integrity of the national economic system. It is not for nothing that they say that in modern Russia the economic unity of the country is not least determined by unified railways, common electricity and gas supplies.

Therefore, natural monopolies become a desirable phenomenon for society, although the monopolistic nature still forces them to regulate their activities.

2. Ways to limit the activities of monopolies

The emergence of a monopoly disrupts the normal functioning of market mechanisms, and this is harmful to the interests of the nation as a whole. And therefore, most countries of the world gradually came to understand the need to fight monopoly.

Monopoly is a phenomenon so ancient and familiar to humanity that it would seem simply unthinkable to cope with it. Moreover, some economists (Karl Marx and his followers) believed that invincible monopoly would, in the end, simply corrode a market-type economy from within and it must be urgently replaced by a planned state economy called “socialism.”

By the end of the 19th century. Economists and governments of the world's leading powers finally also realized the full scale of the danger of monopolies and became determined to begin the fight against them.

In this chapter we will consider the main stages of formation and the main principles and problems of antimonopoly legislation and analyze the main directions of the fight against monopolies in the modern market economy of the Russian Federation.

2.1 Antimonopoly legislation

A monopoly is associated with a whole bunch of sharply negative consequences for the country's economy, such as underproduction, inflated prices, inefficient production, etc. In order to avoid such situations, many developed countries, including Russia, have introduced antitrust regulation and have a special authority to oversee its implementation. Its main task is to maintain the balance of competitive and monopoly forces, limit extreme forms of monopolism and develop a competitive market environment. It is aimed at demonopolizing production and fighting against unfair competition.

Antimonopoly regulation encourages fair, civilized competition, when people win not through dubious methods, but through low prices, high quality, and the offer of lucrative contracts. It is not limited to any time frame. Since the modern economy is structured in such a way that it inevitably gives rise to monopolism, counteracting it becomes a permanent duty of the state.

The system of state regulation, formed in all industrialized countries, as a mandatory element provides for the creation of favorable conditions for the development of a competitive environment in the market of goods and services. At the same time, one of the main instruments limiting monopolistic activities, the basis that creates guarantees for the existence of competition, is antimonopoly legislation.

Antimonopoly legislation is laws and other regulations that promote the development of competition, aimed at limiting and prohibiting monopolies, preventing the creation of monopoly structures and associations, and monopolistic actions.

When developing antimonopoly legislation and other measures aimed at limiting the activities of monopolies, one should proceed from the main goal - to promote the expansion of free competition and make it more perfect. For these purposes it is necessary:

- control the behavior of monopolies in the market, seeking to reduce high monopoly prices to the level of regulated ones, and prevent explicit or secret collusion to set prices that far exceed social costs;

- prohibit mergers, mergers and acquisitions by large, medium and small firms to ensure decentralization and efficient use of resources and public wealth.

The first antitrust laws appeared in the United States more than 100 years ago. Currently, antitrust legislation is part of the legal system of many countries.

The antitrust legislation of the United States is considered to be the most developed, and it also has the longest history. It is based on the “three pillars”, three main legislative acts:

Law Sherman(1890). This law forms the core of antitrust policy in US economic life. It involves the prohibition of trusts, the prohibition of the practice of monopolizing interstate commerce. Anti-competitive actions of firms are treated as the object of a criminal offense, which provides for punishment in the form of imprisonment for up to 3 years, a fine of up to 1 million dollars for a company and up to 100 thousand dollars for an individual, or dissolution of the company;

Law Clayton(1914) and Law O Federal trade commissions. The main provisions of the Clayton Law were:

- almost all forms of discrimination in pricing policy were prohibited;

- restrictions were imposed on the sale and sale of goods with a forced assortment;

- it was prohibited to merge firms through the acquisition of shares of competitors if such actions reduced competition;

- combining positions on the boards of directors of various firms and business enterprises was prohibited.

At the same time as the Clayton Act, the US Congress ratified the Federal Trade Commission Act, which supplemented the Clayton Act. This act gave the US Federal Trade Commission the authority to determine on a case-by-case basis whether there were violations of antitrust laws.

· Law Robinson-Pitman(1936) contains a prohibition of price discrimination and criminal liability for predatory pricing policies, as well as predatory pricing (setting prices below average or marginal costs in order to force a competitor out of the market).

The most difficult task facing government bodies directly implementing antimonopoly legislation is the following: what are the economic criteria on the basis of which the fact of monopolization is established? There are questions that public services have to resolve every time: what is considered a low (or, conversely, inflated) price level? What percentage (share) of total industry production indicates monopolistic capture?

These are not simple questions that cannot be answered in all cases. What if a large corporation achieved low selling prices by reducing costs, using a higher level of technology and general economic efficiency? And in general, by introducing a ban on sales “at extremely low prices”, who is protected by antitrust legislation - competition or some groups of competitors.

Government services called upon to implement antimonopoly legislation can be guided by two principles: firstly, strictly following the letter of the law and, secondly, the “principles of reasonableness”. The fact is that in many respects the legal language of the antitrust acts (for example, the Sherman Act) is so declarative that a US federal court could bring under its scope “any two partners who decide to carry on a business together.” Therefore, the "principle of reasonableness" means that only unreasonable restrictions on trade (agreements, mergers, destruction of values, i.e. artificial scarcity) are covered by the Sherman Act.

All these problems show how difficult it is to implement antitrust laws in practice. The state must balance, walking along a narrow path between the danger of destructive monopolism and the danger of limiting competition (and any government intervention, even for the purpose of maintaining competition, is accompanied by one or another limitation of competitive opportunities). Antimonopoly practice should truly support competition, and not restrict it, providing the most preferential treatment to some groups of producers (consumers) at the expense of others.

In order to establish the fact of monopolization, antimonopoly regulation involves the widespread use of mathematical tools and, in general, the entire theoretical apparatus of the concepts of imperfect competition. Executive authorities carry out not only “punitive” but also preventive work to prevent monopolistic restrictions.

It is important to note that antimonopoly legislation is not directed against large corporations, “big business” as such, since the size of a company does not yet make it possible to treat it as a monopoly. Antitrust regulation targets restrictive business practices that undermine effective competition.

And if we use the principle of comparing additional costs and additional benefits, which is professed in a market economy, then we can say: the inevitable costs that accompany antimonopoly regulation still turn out to be lower than the benefits that limiting monopolistic tendencies in a market economy brings.

Thus, antimonopoly legislation should, on the one hand, strive to regulate prices, the structure of the economy, and fair distribution of resources, and on the other hand, prohibit such behavior and activities of monopolies that are negative in the eyes of society.

2.2 Antimonopoly policy in Russia at the present stage

The formation of a market economy in our country encountered a special kind of monopoly that has no analogues. It was formed in a non-market environment and differs significantly from Western-style monopolism.

The socialist economy was a single national economic complex, in which each enterprise was not completely autonomous, but was an integral part of the national super structure. At the same time, meeting the needs of the entire country for one type of product or another was often entrusted to just one or two factories. Thus, at the end of the 80s, more than 1,100 enterprises were complete monopolists in the production of their products. An even more common situation was when the number of manufacturers throughout the gigantic country did not exceed 2-3 factories. In total, out of 327 product groups produced by the country's industry, 290 (89%) were subject to strong monopolization.

Thus, if in countries with a market economy monopolization usually took place through the organizational unification of initially independent companies, then socialist monopolism was based on the conscious creation of only one producer (or a very narrow group of producers). The beginning of market reforms in our country led to a sharp increase in monopolistic tendencies. Using their monopoly power, monopolists sharply limited supply. And the deliberate reduction in product output, combined with price increases by Russian monopolistic enterprises, was the most important microeconomic reason for the particular depth of the transformation crisis in Russia.

Over the past years, Russia has actively pursued government policy aimed at supporting competition and limiting monopolism.

The Russian Constitution says: “Economic activities aimed at monopolization and unfair competition are not permitted.”

The main problem and at the same time difficulty is the specificity of monopoly inherited from the socialist era: Russian monopolists By greater parts Not can be demonopolized by unbundling.

In the West, demonopolization of giant enterprises is possible through the merger and takeover of independent firms. Russian monopolists, on the contrary, were immediately built as a single plant or technological complex, which in principle cannot be divided into separate parts without complete destruction.

There are three fundamental possibilities for reducing the degree of monopolization:

1. direct separation monopoly structures: such possibilities in Russian reality are very limited, since, for example, a single plant cannot be divided into parts, and cases when a monopolist manufacturer consists of several plants of the same profile almost never occur;

2. foreign competition- This is probably the most effective and efficient blow to domestic monopoly. But such a potent remedy must be used very carefully, since due to ill-conceived foreign exchange and customs policies, import competition in many cases turns out to be excessively strong;

3. Creation new enterprises. This path is preferable in all respects. It eliminates the monopoly without destroying the monopolist itself as an enterprise.

The need to use antimonopoly legislation is dictated by public interests, since this is the only way to ensure that consumers are provided with quality goods at a relatively reasonable price.

The main body for antimonopoly policy in the Russian Federation has undergone a number of changes. In September 1998, the State Antimonopoly Committee (SAC Russia) was renamed the Ministry of the Russian Federation for Antimonopoly Policy and Entrepreneurship Support (MAP). In the spring of 2004, MAP was transformed into the Federal Antimonopoly Service (RF Government Decree No. 189 of April 7, 2004). Its rights and capabilities are quite broad, and its status corresponds to the position of similar bodies in other countries with market economies. The main law regulating monopolies is the Law “On Competition and Restriction of Monopolistic Activities in Product Markets”, adopted in 1991, and since then repeatedly supplemented and amended, as well as Decree of the Government of the Russian Federation dated December 10, 2008 N 950 “On the participation of executive bodies authorities of the constituent entities of the Russian Federation in the field of state regulation of tariffs in the implementation of state regulation and control of the activities of subjects of natural monopolies."

In accordance with the Law “On Competition and Restriction of Monopolistic Activities in Product Markets,” an enterprise that controls 65% or more of the product market can be considered an unconditional monopolist. An enterprise that controls 35-65% of the market can also be recognized as a monopolist, but for this, the antimonopoly authorities must prove that there is a “dominant position” of the economic entity in the market by studying the specific market situation. A “dominant position” gives a firm the ability to exert a decisive influence on competition, impede market access for other economic entities, or otherwise limit the freedom of their economic activity. A list of shares has been established that are interpreted as an abuse of a dominant position. These include the withdrawal of goods from circulation in order to create a shortage, the imposition of conditions unfavorable to the counterparty or not related to the subject of the contract, the creation of obstacles to competitors’ access to the market, and violation of the established pricing procedure.

The law establishes state control over the creation, merger, accession, transformation, liquidation of business entities, as well as compliance with antimonopoly legislation when acquiring shares, shares, participation interests in the authorized capital of an enterprise, and the forced separation of business entities. The liability of enterprises and officials for violation of antimonopoly legislation is provided.

The purpose of antitrust law is to regulate industry structure by explicitly prohibiting the merger of companies that dominate a market.

In our country, reforming the structure of natural monopolies can bring certain benefits. The fact is that in Russia, within the framework of a single corporation, both the production of natural monopoly goods and the production of goods that are more efficiently produced in competitive conditions are often combined. This association is, as a rule, of the nature of vertical integration. As a result, a giant monopolist is formed, representing an entire sphere of the national economy. RAO Gazprom, RAO UES of Russia, and OAO Russian Railways are the most striking examples of such associations. RAO Gazprom, along with the Unified Gas Supply System of Russia (i.e., a natural monopoly element), includes geological exploration, production, instrument-making enterprises, design and technological structures, and social sphere facilities (i.e., potentially competitive elements). JSC Russian Railways is in charge of both infrastructure (railroads, stations, information system) and non-monopoly activities (contracting, construction and repair organizations, catering enterprises). RAO "UES of Russia" unites both electrical networks and power plants. Therefore, there is an opportunity to develop competition in those types of activities of natural monopolies where it can be achieved.

In order to control the market share of economic entities in the country, the state register of the Russian Federation of associations and monopoly enterprises has been approved since 1991. It annually reflects enterprises producing 35% or more of products in any product market. For such enterprises there is a special procedure for setting prices and tariffs. In addition to special departments and committees, deputies of the State Duma also participate in it.

Another step towards improving antimonopoly policy is a revision of its theoretical foundations with a reorientation to other tasks. The main direction among them seems to be the development of a policy to counter the restriction of competition by state authorities and local self-government. The second most important task is to care for the public welfare, and not for the welfare of a competitor.

It follows from the foregoing that, in general, the system of antimonopoly regulation in the Russian Federation is still in its infancy and requires further improvement, but it should also be noted that this direction of state economic policy is rapidly developing and is under the close attention of the Government as one of the priority tasks.

Conclusion

As a result of writing this work, the following conclusions can be drawn:

A monopoly assumes that one firm is the only producer of a given product that has no analogues. The monopolist has complete control over its price and output volume.

The main goal of a monopolist is to obtain maximum profit

A monopolist always charges a price higher than marginal cost. Moreover, the output of a monopoly industry is less than the output of a competitive industry facing the same demand and the same cost conditions, and the monopoly price is higher than the competitive price.

Sometimes economies of scale make a monopoly desirable. But in order to maximize social welfare, the government needs to set and regulate prices.

Thus, the ever-increasing influence of monopolies on the market has become an immutable fact, and therefore, it is now hardly possible to talk about free competition, much less call for a return to it, although from the point of view of theoretical economics such competition contributes to the better use of limited resources of raw materials, materials and other factors of production. At the same time, we should not forget that large-scale production, due to economies of scale, turns out to be more profitable, although it negatively affects the more economical and rational use of production factors.

To summarize, we can characterize antimonopoly legislation and antimonopoly policy in Russia as necessary attributes of structural reforms in all spheres of the country's economy. Undoubtedly, in some cases (but only in a small fraction of their total number) the existence of a monopoly is justified and necessary, but these processes must be strictly controlled by the state to prevent abuse of its monopoly position.

Relying on existing legislation and adopting new, truly working laws aimed at limiting monopoly power and preventing the creation of new monopoly entities, pursuing an effective anti-monopoly policy, it is possible to solve the problem of monopoly.

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The concept of monopolistic activity is given in paragraph 10 of Art. 4 of the Federal Law “On the Protection of Competition”, according to which monopolistic activity is the abuse by an economic entity, a group of persons of its dominant position, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inactions) recognized in accordance with federal laws as monopolistic activities.

In theoretical terms, there are different approaches to defining the concept of monopolistic activity, one of which is the consideration of monopolistic activity as illegal behavior of subjects equated to an offense. Therefore, we can talk about the composition of monopolistic activity as an offense, however, here it is extremely important to take into account the heterogeneity of monopolistic activity, as a generic concept, which includes its various types.

In accordance with antimonopoly legislation, monopolistic activity includes three main groups of its types:

Abuse by an economic entity (group of persons) of its dominant position in the market;

Agreements and concerted actions prohibited by antimonopoly legislation;

Other actions (inactions) recognized in accordance with federal laws as monopolistic activities.

The most common forms of monopolistic activity in practice are those included in one of the first two groups.

Abuse by an economic entity of its dominant position in the market can be characterized as individual monopolistic activity, which manifests itself, for example, in the forms of:

Establishing and maintaining a monopolistically high or monopolistically low price for a product;

Withdrawal of goods from circulation, if the result of such withdrawal was an increase in the price of the goods, etc.

Collective monopolistic activity is carried out, in particular, in the form of agreements limiting competition and coordinated actions of economic entities. It should be noted that the division of types of monopolization into individual and collective, in particular, is actively used in the doctrine and practice of antitrust regulation and enforcement in the United States.

The concept of the dominant position of an economic entity in the market. A system of prohibitions on economic entities abusing their dominant position in the market

One of the types of monopolistic activity is the abuse by an economic entity, a group of persons, of its dominant position in the market. The legal concept of dominant position expresses the economic phenomenon of the so-called. market power. In other words, the legal status of an economic entity occupying a dominant position is based on the economic concept of market power, the essence of which is reflected in the legal content of the dominant position. In Russian antimonopoly legislation, signs of a dominant position are recorded in Article 5 of the Competition Law.

It is important to note that for entities occupying a dominant position, the legislation establishes a stricter framework for freedom of market behavior than for other market entities. The possibility of such a limitation is explained, in particular, in the context of the principles of equality and partnership of business entities identified in the literature. The principle of equality of economic entities is implemented in horizontal economic relations. This principle is not applicable in vertical economic relations. At the same time, the state, in the process of regulating the economy, is obliged to ensure the proper operation of the principle of equality in horizontal economic relations and, especially, not to create preconditions for its violation by legislative, executive and judicial authorities.

As the Constitutional Court of the Russian Federation indicated back in 1999, the legislator does not have the right to limit itself to formal recognition of the legal equality of the parties and must provide certain advantages to the economically weak and dependent party in order... to actually guarantee, in accordance with Articles 19 and 34 of the Constitution of the Russian Federation, compliance with the principle equality in the implementation of entrepreneurial and other economic activities not prohibited by law. It should be noted that in this decision of the Constitutional Court of the Russian Federation we are talking about the relationship between a professional business entity - a bank and non-professionals - consumers of its services.

In 2010 ᴦ. The Constitutional Court of the Russian Federation indicated that since business entities are equal before the law, the state does not have the right to introduce unjustified benefits or preferences or an unequal legal regime of functioning in the same relationships and situations. Provision of Art. 19 (Part 1) of the Constitution of the Russian Federation “all are equal before the law” means that under equal conditions, subjects of law should be in an equal position. If the conditions are not equal, the federal legislator has the right to establish different legal status for them.

In this context, it is extremely important to consider the special legal status of business entities that occupy a dominant position in the market, in particular, the special requirements and prohibitions addressed by the state to these types of entities.

Dominant position is not synonymous with monopoly. We can talk about a dominant position if an economic entity occupies a significant market share, but in addition to it there are other economic entities on the market. In a situation of monopoly, there is always a subject that occupies a dominant position, but the presence of a subject that occupies a dominant position does not yet indicate the presence of a monopoly in the market. A dominant position is not associated with a monopoly, but with another type of market - monopolistic competition.

The definition of a dominant position given in the Russian Competition Law is in many ways similar to the definition adopted in the European Community, according to which “a dominant position... refers to the economic power (power) enabling an enterprise to prevent normal competition in the relevant market and be able to behave to a certain extent independently of competitors, clients and, ultimately, consumers."

Let's consider the concept of a dominant position given in Part 1 of Article 5 of the Law on Protection of Competition. According to this norm, a dominant position is recognized as the position of an economic entity (group of persons) or several economic entities (groups of persons) in the market for a certain product, giving such an economic entity (group of persons) or such economic entities (groups of persons) the opportunity to exert a decisive influence on the general conditions for the circulation of goods on the relevant product market, and (or) eliminate other economic entities from this product market, and (or) impede access to this product market for other economic entities.

At the same time, it is extremely important to immediately emphasize that the dominance of an economic entity (group of persons) in the market in itself is not something reprehensible or illegal. A violation is precisely the abuse by an economic entity, a group of persons, of a dominant position in the market, ᴛ.ᴇ. exploiting one’s strong economic position in the market – a dominant position.

There are various criteria by which an organization should be classified as dominant, in particular, they can be divided into qualitative and quantitative. As for the quantitative criterion, this is the share of the subject (group of persons) in the product market. As stated in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation, the dominant position of an economic entity is established taking into account its share in the market for a certain product. In this case, the share is recognized, unless otherwise proven, equal to that indicated in the register of economic entities.

So, in the case of applying a quantitative criterion, the dominance of an economic entity (group of persons) is determined based on its (group of persons) market share. Roughly speaking, if the share of a business entity is so large that it exceeds the threshold values ​​of the Law on Protection of Competition or other special federal laws, then its position is recognized as dominant. It should be immediately noted here that if an economic entity acts on the market on its own and is not part of a group with any individual or legal entity, then its market share is equal to its personal share in the market. If the business entity is included in a group of persons with individuals or legal entities according to any of the criteria specified in Art. 9 of the Law on the Protection of Competition, operating in the same market as it and in relation to which (the market) the shares of business entities are determined, then the share is defined as the total, cumulative share of all business entities included in one group of persons and operating in a given commodity market.

For example, a certain LLC “Store “Products” is not included in a group of persons with other legal entities and individuals selling milk and dairy products in the village of “Zvezdochka”. The share of sales of this store is, therefore, a single share, the own share of this particular LLC ʼʼMagazin ʼProductsʼ and amounts to, for example, 15% of all sales of milk and dairy products in the village. But in this village, several more business entities are engaged in the sale of these products - Kefirchik LLC, Tvorozhok LLC, Molochko LLC, which individually have a share of sales in this food market in the village of Zvezdochka, respectively, 15%, 30%, 30%. The remaining 10% comes from small sellers of dairy products - individuals. At the same time, in the process of analyzing the market and studying groups of persons of economic entities, it turns out that LLC ʼʼKefirchikʼʼ, LLC ʼʼTvorozhokʼʼ, LLC ʼʼMolochkoʼ are part of the same group of persons, they have one founder - LLC ʼʼMonopolistʼʼ, which has the ability, on the basis of constituent documents, to give to the immediate managers of LLC ʼʼKefirchikʼʼ , OOO ʼʼTvorozhokʼʼ, OOO ʼʼMolochkoʼʼ mandatory instructions. In this case, the share of these economic entities in the market for the sale of milk and dairy products in the village of Zvezdochka will be considered in its entirety, since in reality these three companies pursue a single trade policy, are managed from a single center, as a single economic entity, which characterizes the economic entities subjects belonging to the same group of persons. So, when analyzing the market when determining the shares of business entities, in accordance with the Competition Law, not the individual shares of Kefirchik LLC, Tvorozhok LLC, Molochko LLC will be taken into account, but their aggregate share, since they are part of the same group of persons and all operate in this market. In this case, this share - the share of this group of people - is 75% of the sale of all dairy products in the village. It is on the basis of this total share that it will be determined whether it occupies a dominant position. And in relation to LLC ʼʼMagazin ʼʼProductsʼʼ, which is not part of a group of persons with anyone and has only its own individual share in the amount of 15%, the presence or absence of dominance will be determined based on this individual 15% share of LLC ʼʼMagazin ʼʼProductsʼ.

At the same time, the Law on the Protection of Competition uses not only quantitative, but also qualitative criteria, moreover, by virtue of Part 6.1 of Art. 5 of the Law on Protection of Competition, the quantitative criterion no longer plays a decisive role in determining dominance, due to the fact that, according to the results of an analysis of the state of competition carried out by the antimonopoly authority, the position of an economic entity whose share in the market of a certain product is less than thirty-five percent and exceeds the shares of other economic entities in the relevant product market, but which can have a decisive influence on the general conditions of circulation of goods on the product market, if the following conditions are met in total:

1) an economic entity has the ability to unilaterally determine the price level of a product and have a decisive influence on the general conditions for the sale of goods on the relevant product market;

2) access to the relevant product market for new competitors is difficult, incl. due to the presence of economic, technological, administrative or other restrictions;

3) a product sold or purchased by an economic entity must not be replaced by another product when consumed (including when consumed for production purposes);

4) a change in the price of a product does not cause a corresponding decrease in demand for the product.

By virtue of Part 6.1. Art. 5 of the Law on Competition, it is possible to establish dominance in relation to an economic entity, regardless of its market share, only on qualitative grounds at the discretion of the antimonopoly authority.

Before considering qualitative criteria, let’s consider what criteria the Law on the Protection of Competition by Shares establishes to determine the presence or absence of a dominant position in an economic entity (group of persons).

Article 5 of the Law on Protection of Competition specifies several such criteria for dominance:

1) if the share of an economic entity in the market for a certain product exceeds 50%, unless, when considering a case of violation of antimonopoly legislation or when exercising state control over economic concentration, it is established that, despite exceeding the specified value, the position of the economic entity is not dominant in the product market;

2) if the share of an economic entity in the market for a certain product is less than 50%, if the dominant position of such an economic entity is established by the antimonopoly authority based on the unchanged or subject to minor changes share of the economic entity in the product market, the relative size of shares in this product market belonging to competitors, the possibility of access to a given product market for new competitors or based on other criteria characterizing the product market;

3) the position of the economic entity is also recognized as dominant - subject of natural monopoly- on a commodity market in a state of natural monopoly. According to this provision in the antimonopoly legislation, for the purposes of antimonopoly control and supervision, a subject of a natural monopoly is automatically perceived as an economic entity occupying a dominant position in a given product market, which is in a state of natural monopoly.

According to the general rule defined in Art. 5 of the Law on Protection of Competition, the dominant position of an economic entity operating in commodity markets, whose share in the market for a particular product does not exceed 35%, should not be recognized. However, this article makes several exceptions to this rule. First of all, the dominance threshold for financial organizations has been lowered. Secondly, part 6 of Art. 5 of the Law on Protection of Competition indicates that federal laws for individual markets can be installed cases of recognition of the dominant position of an economic entity whose share in the market for a certain product is less than 35%. And thirdly, Article 5 recognizes it is possible to establish the existence of a dominant position in an economic entity when its share is less than 35%, but more than 8%, if such an entity operates in an oligopoly market, determined in accordance with the criteria established in Part 3 of Article 5 of the Law on Protection of Competition.

Let's take a closer look at these cases. Let's start with cases where federal laws establish special dominance thresholds. So, part 6 of Art. 5 of the Law on Protection of Competition indicates that federal laws may establish cases of recognition of the dominant position of an economic entity whose share in the market for a certain product is less than 35%.

This means, for example, that if the federal law establishes a dominance threshold in any market based on its specifics, for example, 20%, then an economic entity (group of persons) occupying in this market, for example, 20, 21, 22 percent or more will also be considered to have a dominant position in that particular product market. Such special threshold values ​​of individual dominance are established, for example, by the Federal Law of March 26, 2003. No. 35-FZ “On the Electric Power Industry” in relation to economic entities in the electricity markets. According to Part 3 of Art. 25 of this Law, the position of an economic entity (group of persons) is recognized as dominant if at least one of the following conditions is met:

the share of the installed capacity of its generating equipment or the share of electrical energy generated using the specified equipment within the boundaries of the free flow zone exceeds 20 percent;

the share of purchased or consumed electrical energy and (or) power within the boundaries of the corresponding free flow zone exceeds 20 percent.

When considering a case of violation of the antimonopoly legislation of the Russian Federation or when exercising control over economic concentration, it must be established that the position of an economic entity (group of persons) in the product market is not dominant, despite exceeding the share specified in this paragraph.

It should also be noted that the Electricity Law, along with the application of the concept of the dominant position of an economic entity (group of persons), introduces the concept state of exception subjects of electricity markets. According to Part 4 of Art. 25 of this Law, the antimonopoly authority must recognize the dominant position of an economic entity (group of persons) with a share of less than 20 percent based on the presence of a dominant position of such an economic entity (group of persons) in the fuel markets and (or) establishing the fact that such an economic entity (group of persons ) has or is capable of exerting, in the corresponding zone or zones of free flow, a decisive influence on the formation of the equilibrium price for electrical energy during a certain period of the state of the wholesale market, characterized by the absence of the possibility of replacing the volume of electrical energy supplied by such an economic entity (group of persons) with the volume of electrical energy supplied by others economic entities or replacing the volume of electrical energy consumed by such an economic entity (group of persons) with the volume of electrical energy (power) consumed by other consumers, as well as based on other conditions determined in the manner established by the Government of the Russian Federation and related to the circulation of electrical energy and power in this free flow zone.

Dominance thresholds below 35% are established, if they are extremely important, in other federal laws in relation to individual product markets.

The second group of exceptions - special dominance criteria are established for financial organizations, ᴛ.ᴇ. business entities operating in financial services markets. In contrast to the criteria of dominance for economic entities (groups of persons) operating in commodity markets, such criteria for financial organizations are not clearly expressed in the Law on Protection of Competition itself. Competition Law in Part 7 of Art. 5 indicates that the conditions for recognizing the dominant position of a financial organization supervised by the Central Bank of the Russian Federation, taking into account the restrictions provided for by the Competition Law, are established by the Government of the Russian Federation in agreement with the Central Bank of the Russian Federation. The conditions for recognizing the dominant position of another financial organization, taking into account the restrictions provided for by the Competition Law, are established by the Government of the Russian Federation. The dominant position of a financial organization supervised by the Central Bank of the Russian Federation is established by the antimonopoly authority in the manner approved by the Government of the Russian Federation in agreement with the Central Bank of the Russian Federation. The procedure for establishing the dominant position of another financial organization by the antimonopoly authority is approved by the Government of the Russian Federation. The position of a financial organization whose share does not exceed ten percent in the only commodity market in the Russian Federation or twenty percent in a commodity market in which the goods traded are also traded in other commodity markets in the Russian Federation should not be recognized as dominant.

More detailed regulation of the dominance of financial organizations, except for credit institutions, in accordance with Part 7 of Art. 5 of the Law on the Protection of Competition should be established by the Government of the Russian Federation, and for credit organizations - by the Government of the Russian Federation in agreement with the Central Bank of Russia. According to the Conditions for recognizing the dominant position of a financial organization (with the exception of a credit organization), approved by Decree of the Government of Russia No. 359, the position in the commodity market financial organization with the exception of a credit organization, is recognized as dominant if the financial organization has the ability to exert a decisive influence on the general conditions of circulation of a financial service in the relevant market, and (or) eliminate other economic entities from the product market, and (or) impede their access to the product market market. The dominant position on the commodity market of several financial organizations that are part of a group of persons operating within the boundaries of the commodity market is established in the aggregate for the group of persons.

Taking into account the relative size of shares in the relevant product market owned by competitors, the position of a financial organization in respect of which the following conditions are met in aggregate is recognized as dominant:

the share of a financial organization exceeds 10% on the only commodity market in the Russian Federation or 20% on a commodity market on which the goods traded are also traded on other commodity markets in the Russian Federation;

the share of a financial organization in the commodity market over a long period of time (at least one year or during the existence of the corresponding commodity market, if such a period is less than one year) increases and (or) invariably exceeds 10% on the only commodity market in the Russian Federation market or 20% on a commodity market in which the goods traded are also traded on other commodity markets in the Russian Federation.

According to clause 1 of the Conditions for recognizing a dominant position credit institution, approved by Decree of the Government of Russia No. 409, the position of a credit organization in the commodity market is recognized as dominant if it gives such a credit organization the opportunity to exert a decisive influence on the general conditions for the circulation of services in the relevant market, and (or) eliminate other economic entities from the commodity market, and (or) make it difficult for them to access the commodity market. The dominant position in the commodity market of several credit institutions that are part of a group of persons operating within the boundaries of the commodity market is established in the aggregate for the group of persons.

Taking into account the shares of competitors in the relevant product market, the position of a credit institution in respect of which the following conditions are met in aggregate is recognized as dominant:

the credit institution's share exceeds 10% on the only commodity market in the Russian Federation or 20% on a commodity market on which the goods traded are also traded on other commodity markets in the Russian Federation;

the share of a credit institution in the commodity market over a long period of time (at least one year or during the existence of the corresponding commodity market, if such a period is less than one year) increases and (or) invariably exceeds 10% on the only commodity market in the Russian Federation market or 20% on a commodity market in which the goods traded are also traded on other commodity markets in the Russian Federation.

According to clause 2 of this document, the specified conditions apply to the credit institution when it carries out banking operations. In the case of a credit organization carrying out other operations (providing other financial services), the conditions for recognizing the dominant position of the financial organization providing the relevant financial services, ᴛ.ᴇ, are applied to it. conditions established by the above-mentioned resolution of the Government of Russia No. 359.

Third group of exceptions, when the threshold of dominance of economic entities is below 35% is also established in Art. 5 of the Law on Protection of Competition. These are cases when the position of a business entity whose market share is less than 35%, but more than 8%, must be recognized as dominant, if it operates in a market that is in an oligopoly in accordance with the criteria and conditions, defined in Part 3 of Art. 5 of the Law on Protection of Competition. According to the Law, the position of each economic entity from several economic entities (with the exception of a financial organization) is recognized as dominant, in relation to which the following conditions are met in aggregate:

1) the total share of no more than three business entities, the share of each of which is greater than the shares of other business entities in the relevant product market, exceeds 50%, or the total share of no more than five business entities, the share of each of which is greater than the shares of other business entities in the corresponding commodity market, exceeds 70% (this provision does not apply if the share of at least one of these economic entities is less than 8%);

2) for a long period (for at least one year or, if such a period is less than one year, during the existence of the relevant product market), the relative sizes of the shares of economic entities remain unchanged or are subject to minor changes, as well as access to the corresponding product market of new competitors is difficult;

3) a product sold or purchased by business entities must not be replaced by another product when consumed (including when consumed for production purposes), an increase in the price of a product does not cause a corresponding decrease in demand for this product, information on the price, conditions of sale or purchase of this product on the relevant product market is available to an indefinite circle of persons.

So, we have considered cases and criteria for the presence or absence of dominance, incl. individual and collective, economic entities, incl. financial organizations. Who establishes the fact of the presence or absence of a dominant position and why is this necessary?

First of all, let’s figure out why it is extremely important to determine the presence or absence of a dominant position for an economic entity? The fact is that the status of a dominant market subject means for such a subject the presence of additional restrictions on the freedom of its market activities and, accordingly, an increase in responsibilities, since the unlimited power of such a subject in the market, its special capabilities can cause a lot of harm to society in the absence of restrictions defined by law mechanisms. On the contrary, with proper regulation and control, the economic activities of the dominant entity can make a significant contribution to the socio-economic development of the country. For this reason, in the public interest, antimonopoly legislation, based on Article 10 of the Civil Code of the Russian Federation, which prohibits the abuse of a dominant position in the market, establishes a system of prohibitions, restrictions and obligations for entities occupying a dominant position, which, however, do not significantly deprive them market freedom and the opportunity to fruitfully develop their economic activities and receive legitimate profits.

The presence or absence of the status of a dominant economic entity also means that only such an entity must fulfill all obligations and not violate the prohibitions that are established for such entities by antimonopoly legislation, and bear responsibility for their violation. If an economic entity (group of persons) is accused of committing an action (inaction) in its business practices that outwardly resembles one of the forms of abuse of a dominant position, but it is established that it does not occupy a dominant position in the market, then it should not be recognized as violating antimonopoly laws, because only those who have this position can abuse a dominant position. For example, if an economic entity (group of persons) with a market share of 1% begins to sell its products at a price at least a thousand times higher than its normal market value, then this will be its full right, since there is There are many competitors who can satisfy demand at a normal market price. If the price is unreasonably inflated by a monopolist, an entity occupying a dominant position, then he will be in violation of the ban on setting monopoly high prices, and will become the object of antimonopoly control with all the ensuing consequences, since when such a price increase is carried out by a monopolist, then it is capable of causing significant damage to consumers of the monopolist’s goods, because the consumer has no other opportunity to buy a similar product from a competitor, and the monopolist actually dictates unilaterally unfavorable terms of the transaction for the consumer, using its market power.

The authority to establish a dominant position belongs to the antimonopoly authority in accordance with the Law on Protection of Competition. According to clause 10, part 1, art. 23 of the Law on Protection of Competition, the FAS of Russia is vested with the authority to establish the dominant position of an economic entity (group of persons) when considering a case of violation of antimonopoly legislation and when exercising state control over economic concentration. The court, based on the meaning and letter of the Competition Law and the content of procedural legislation, does not have the power to establish a dominant position. This is the prerogative of the specially authorized executive body in the field of antimonopoly control and supervision. In this case, the fact of dominance can be challenged in court. But here the court will not again establish the fact of dominance or its absence. He, as an arbitrator, will decide whether such a situation was legally established by the antimonopoly authority or not, and thus, if the fact of dominance established by the antimonopoly authority is challenged, the court will only agree with the correctness of the antimonopoly authority or recognize such an establishment as unlawful. The right of an economic entity (group of persons) to challenge, incl. in court, the establishment by the antimonopoly authority of the fact of dominance is specifically devoted to Part 4 of Art. 5 of the Law on Protection of Competition, according to which “a business entity has the right to present evidence to the antimonopoly authority or court that the position of this business entity in the product market should not be recognized as dominant.”

As we see, not only to the court, but also to the antimonopoly authority, an economic entity has the right to present evidence that its position in the product market should not be recognized as dominant. If an economic entity has reason to believe that its position is not dominant for one reason or another, it has the right to submit materials evidencing this to the FAS Russia, if the fact of dominance is still being established, or to the court, if the economic entity the subject wishes to challenge this fact established by the FAS of Russia.

For example, an economic entity can challenge the decision and order of the FAS Russia, which applies liability measures to it as a person who has abused its position in the market, and one of the points of dispute should be, in particular, the illegality, in the opinion of the plaintiff, of the establishment against him the fact of dominance, and therefore, being held accountable as someone who abused his dominant position, which should not have happened.

So, for example, the Law on Competition in paragraph 2 of part 1 of Art. 5 establishes the following criterion for individual dominance: the share of an economic entity (group of persons) in the market for a certain product is less than 50%, if the dominant position of such an economic entity is established by the antimonopoly authority based on the unchanged or subject to minor changes of the share of an economic entity in the product market, the relative size of the shares in this product market owned by competitors, the possibility of access of new competitors to this product market, or based on other criteria characterizing the product market. An economic entity may present evidence to the antimonopoly authority or court that its share was not unchanged or subject to minor changes in the share of an economic entity in a product market, the relative size of shares in this product market owned by competitors, or, for example, there was a wide opportunity for new competitors to access this product market, etc.

An economic entity can, in this and other cases, challenge the size of its market share, arguing, for example, that it is below 35%, and therefore cannot be recognized as occupying a dominant position, unless, of course, it can provide appropriate evidence and is not a subject of the so-called collective dominance.

The institution of dominance of an economic entity in the market is closely related to the institution of the register of economic entities that have a market share of a certain product in the amount of more than 35% or occupy a dominant position in the market of a certain product, if in relation to such a market there are other federal laws in for the purposes of their application, cases of recognition of the dominant position of economic entities (hereinafter referred to as the register) have been established, however, these institutions are not identical and have their own characteristics and special tasks within the framework of the general goal of state antimonopoly control and supervision to counter the abuse by economic entities of their dominant position in the market. What are the functions, goals, purpose, rules for maintaining the specified register, connection with the institution of dominance of economic entities? Let's look at these questions. First of all, let's look at the registry institution itself.

Registry Institute established by the antimonopoly legislation of Russia. The register is maintained for the purpose of exercising antimonopoly control over particularly large business entities (groups of persons), respectively, occupying a market share of over 35%, or occupying a dominant position in the market for a certain product, if in relation to such a market other federal laws for the purpose of their application, cases of recognition of the dominant position of economic entities have been established.

The very fact of owning such a share and being included in the register is not something illegal, but the inclusion of such entities in this register entails special legal consequences and obligations for them in order to more effectively implement antimonopoly control against them. In particular, persons (groups of persons) included in the register have the obligation to approve certain transactions and actions with their participation as part of the control of economic concentration carried out by the antimonopoly authority in order to prevent abuse of dominant position.

The registry institution is established in the Law on the Protection of Competition and, according to this Law, is regulated by the Government of the Russian Federation. According to clause 8, part 1, art. 23 of this Law, the antimonopoly authority is obliged to

Concept and types of monopolistic activity - concept and types. Classification and features of the category "Concept and types of monopolistic activities" 2017, 2018.

Monopolistic activity is the abuse of a dominant position by an economic entity, a group of persons, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions recognized in accordance with federal laws as monopolistic activities.

Dominant position in the market - the position of an economic entity (group of persons) or several economic entities (group of persons) in the market for a certain product, giving such an economic entity (group of persons) or such economic entities (groups of persons) the opportunity to exert a decisive influence on the general conditions of circulation of the product on the relevant product market, and (or) eliminate other business entities from this product market, and (or) impede access to this product market for other business entities (Part 1, Article 5 of the Federal Law “On Protection of Competition”). A dominant position in the market is occupied by an economic entity in cases where: 1)

its share in the market for a certain product exceeds 50%, unless it is established that, despite exceeding the specified value, the position of the economic entity in the product market is not dominant; 2)

its share in the market for a certain product is less than 50%, if the dominant position of such an economic entity is established by the antimonopoly authority (Part 1, Article 5 of the Federal Law “On Protection of Competition”); 3)

the aggregate share of no more than three economic entities, the share of each of which is greater than the shares of other economic entities in the relevant product market, exceeds 50%, or the aggregate share of no more than five economic entities, the share of each of which is greater than the shares of other economic entities in the relevant product market , exceeds 70% (Part 3 of Article 5 of the Federal Law “On Protection of Competition”) (this provision does not apply if the share of at least one of the specified business entities is less than 8%); 4)

over a long period of time, the relative sizes of shares of business entities remain unchanged or are subject to minor changes, and access to the relevant product market for new competitors is difficult; 5)

a product sold or purchased by business entities cannot be replaced by another product during consumption, an increase in the price of a product does not cause a corresponding decrease in demand for this product, information about the price, conditions for the sale or purchase of this product on the relevant product market is available to an indefinite number of persons (h 3 Article 5 Federal Law “On Protection of Competition”). The position of an economic entity whose market share of a particular product does not exceed 35% cannot be recognized as dominant.

The danger of a dominant market position for trade is that a dominant market position often leads to monopoly. Abuse of a dominant position can only be recognized in court. The dominant position of an economic entity is established by the antimonopoly authority in case of violation of antimonopoly legislation.

Actions (inaction) of an economic entity occupying a dominant position are prohibited, the result of which is or may be the prevention, restriction, elimination of competition and (or) infringement of the interests of other persons, including in accordance with Part 1 of Article 10 of the Federal Law “On Protection of Competition”): 1)

establishing and maintaining a monopolistically high or monopolistically low price for a product; 2)

withdrawal of goods from circulation if the result of such withdrawal was an increase in the price of the goods; 3)

imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract; 4)

an economically or technologically unjustified reduction or cessation of production of a product, if there is a demand for this product or orders have been placed for its supply if it is possible to produce it profitably, and also if such a reduction or cessation of production of a product is not directly provided for by federal laws, regulations of the President of the Russian Federation , the Government of the Russian Federation, authorized federal executive bodies or judicial acts; 5)

economically or technologically unjustified refusal or evasion from concluding a contract with individual buyers if it is possible to produce or supply the relevant goods, as well as in the event that such refusal or such evasion is not expressly provided for by federal laws, regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation, authorized federal executive authorities or judicial acts; 6)

economically, technologically or otherwise unjustified establishment of different prices for the same product, unless otherwise established by federal law; 7)

setting by a financial organization an unreasonably high or unreasonably low price for a financial service; 8)

creation of discriminatory conditions; 9)

creating obstacles to access to the product market or exit from the product market for other economic entities; 10)

violation of the pricing procedure established by regulatory legal acts.

According to their types, monopolistic activities are divided into: 1)

individual; 2)

collective; 3)

negotiated; 4)

non-contractual.

Individual monopolistic activity is manifested in the abuse of a dominant position in the market for a certain type of product. Collective monopolistic activity is manifested in the conclusion of agreements.

An agreement is an agreement in writing contained in a document or several documents, as well as an agreement in oral form. Agreements allowed: 1)

in writing if these agreements are commercial concession agreements; 2)

between economic entities, the share of each of which in any product market does not exceed 20%. The Federal Law “On Protection of Competition” allows for actions, inactions, agreements, concerted actions, transactions, if they do not create the opportunity for individuals to eliminate

competition in the relevant product market, restrictions are not imposed on their participants or third parties that are not consistent with achieving the goals of such actions (inaction), agreements and concerted actions, transactions, other actions, and also if their result is or may be: 1)

improving production, sales of goods or stimulating technical and economic progress or increasing the competitiveness of Russian-made goods on the world commodity market; 2)

receipt by buyers of advantages (benefits) commensurate with the advantages (benefits) received by business entities as a result of actions (inaction), agreements and concerted actions, transactions.

Agreements between federal executive authorities, state authorities of constituent entities of the Russian Federation, local self-government bodies, other bodies and organizations performing the functions of these bodies, as well as state extra-budgetary funds, the Central Bank of the Russian Federation or between them and economic entities, or the implementation by these bodies and organizations of agreed upon agreements are prohibited. actions if such an agreement or such implementation of concerted actions leads or may lead to the prevention, restriction, or elimination of competition, in particular to: 1)

increasing, decreasing or maintaining prices (tariffs), except for cases where such agreements are provided for by federal laws and regulations of the President of the Russian Federation and the Government of the Russian Federation; 2)

economically, technologically and otherwise unjustified establishment of different prices (tariffs) for the same product; 3)

division of the commodity market according to the territorial principle, the volume of sales and purchases of goods, the range of goods sold, or the composition of sellers or buyers; 4)

Based on the meaning of the current legislation (clause 10, article 4 of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition”), under monopolistic activity it is necessary to understand the abuse by an economic entity, a group of persons of its dominant position, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inactions) recognized in accordance with federal laws as monopolistic activities. This definition is common to commodity and financial markets.

Thus, monopolistic activity is an offense, i.e. unlawful, guilty action (inaction) of the offender, causing harm and entailing the application of legal liability measures.

The illegality of any offense lies in the violation of the norms of objective law and the subjective rights of other persons. Actions falling under monopolistic activity are considered illegal if they violate the regulations or prohibitions established by the antimonopoly legislation. Inaction is an offense if a person voluntarily does not fulfill the obligation assigned to him by the norm of antimonopoly legislation.

Monopolistic activities violate both private and public rights and interests. First of all, this offense infringes on the subjective rights of individuals - the rights of consumers and entrepreneurs in commodity and financial markets.

Like any offense, monopolistic activity includes: an object; objective side; subject; subjective side.

According to Part 1 of Art. 8 of the Constitution of the Russian Federation and Art. 1 of the Law on Protection of Competition, the goals of implementing antimonopoly legislation are to ensure the unity of the economic space, freedom of economic activity, support of competition, prevention, limitation and suppression of monopolistic activities and unfair competition. The state strives to guarantee both the implementation of competition itself and its qualitative characteristics. All this forms the basis of the rule of law in the field of competition, which is encroached upon by monopolistic activity. Therefore, such a competitive legal order should be considered object of monopolistic activity.

Objective side offenses usually include:

1) illegality of the subject’s behavior;

2) harmful consequences;

3) a causal relationship between the first two elements.
Monopolistic activity is an act, that is,

behavior in the market of an economic entity or government body expressed in the form of action or inaction. Actions and inactions have a completely independent and definite purpose. In particular, it can be expressed in the desire to establish monopolistic high (low) prices or refuse to enter into contracts with specific buyers (customers).

But monopolistic activity can also take place in the form of inaction (for example, it may be associated with the reluctance of the subject to eliminate artificially created obstacles that infringe on the interests of other entrepreneurs in a given goods market)

Another element of the offense is its harmfulness (harm, losses). Monopolistic activities that violate the requirements of antimonopoly legislation harm relations in the field of fair competition.

subjects of monopolistic activity are:

· economic entity;

· group of persons;

To business entities in accordance with clause 5 of Art. 4 of the Law on Protection of Competition includes an individual entrepreneur, a commercial organization, as well as a non-profit organization carrying out activities that generate income for it.

A group of persons in accordance with Art. 9 of the Law on Protection of Competition recognizes:

1) a business entity (partnership, business partnership) and an individual or legal entity, if such an individual or such legal entity has, by virtue of its participation in this business entity (partnership, business partnership) or in accordance with the powers received, including including, on the basis of a written agreement, from other persons, more than fifty percent of the total number of votes attributable to voting shares (shares) in the authorized (share) capital of this business entity (partnership, business partnership);

2) a business company (partnership, economic partnership) and an individual or legal entity, if such an individual or such legal entity performs the functions of the sole executive body of this business company (partnership, economic partnership);

3) a business company (partnership, business partnership) and an individual or legal entity, if such an individual or such legal entity is based on the constituent documents of this business company (partnership, business partnership) or concluded with this business company (partnership, business partnership) agreement has the right to give this business entity (partnership, business partnership) mandatory instructions;

4) a business company (partnership, business partnership), in which more than fifty percent of the quantitative composition of the collegial executive body and (or) board of directors (supervisory board, fund board) are the same individuals;

5) a business company (economic partnership) and an individual or legal entity, if, at the proposal of such an individual or such legal entity, the sole executive body of this business company (economic partnership) has been appointed or elected;

6) a business company and an individual or legal entity, if, at the proposal of such an individual or such legal entity, more than fifty percent of the quantitative composition of the collegial executive body or the board of directors (supervisory board) of this business company was elected;

7) an individual, his spouse, parents (including adoptive parents), children (including adopted children), full and half brothers and sisters;

8) persons, each of whom, according to any of the characteristics specified in paragraphs 1 - 7 of this part, is included in a group with the same person, as well as other persons who, with any of such persons, are included in a group according to any of the specified in paragraphs 1 - 7 of this part the sign;

9) a business company (partnership, business partnership), individuals and (or) legal entities that, according to any of the characteristics specified in paragraphs 1 - 8 of this part, are included in a group of persons, if such persons, by virtue of their joint participation in this business company (partnership, business partnership) or in accordance with the powers received from other persons, have more than fifty percent of the total number of votes attributable to voting shares (shares) in the authorized (share) capital of this business company (partnership, business partnership) .

Monopolistic activity is punishable by law as an offense. The state coercive measures (sanctions) provided for by the Law on Protection of Competition are applied to entities carrying out monopolistic activities.

So, to summarize all of the above, we can give the following doctrinal definition of monopolistic activity.

Monopolistic activity is a deliberate act (action or inaction) of economic entities (groups of persons) that is contrary to antimonopoly legislation, aimed at preventing, limiting or eliminating competition.

A type of monopolistic action is the abuse of a dominant position. In addition, there is monopolistic activity of executive authorities and local governments (for example, providing benefits and advantages to some entrepreneurs and creating administrative and other barriers to others).

A special type of monopolistic actions are agreements and concerted actions that limit competition, which are aimed at establishing (maintaining) prices, discounts, surcharges; increase (decrease), maintenance of prices at auctions and trades; division of the market according to territorial principle, volume of sales and purchases, assortment of goods; restricting market access to other economic entities; refusal to enter into contracts with certain sellers or buyers.

I.A. Smagina identifies the following types of monopolistic activities of economic entities:

1) individual monopolistic activity, which manifests itself as abuse by an economic entity of its dominant position in the market. Depending on the purposes, abuse can manifest itself in the form of:

Removal of goods from circulation, the purpose or result of which is to create or maintain a shortage in the market or increase prices;

Imposing contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract, including discriminatory conditions in the contract;

Creating obstacles to market access for other economic entities;

Creating conditions for access to the commodity market, exchange, consumption, acquisition, production, sale of goods, which put one or more business entities in an unequal position compared to another or other business entities (discriminatory conditions);

Violations of the pricing procedure established by regulatory enactments;

Setting monopoly high or monopoly low prices;

Reducing or stopping the production of goods for which there is demand or orders from consumers, if there is a break-even possibility of their production;

Unreasonable refusal to conclude an agreement with individual buyers (customers) if there is the possibility of production or delivery of the relevant product.

In exceptional cases, these actions may be recognized as legal if the business entity proves that the positive effect of them, including in the socio-economic sphere, will exceed the negative consequences for the product market in question;

2) collective monopolistic activity in the form of agreements (concerted actions) of economic entities that limit competition. Depending on the subject composition, there are:

Agreements (concerted actions) of competing entities with a combined market share of a certain product of more than 35%. These agreements or concerted actions may be aimed, for example, at establishing (maintaining) prices, discounts, surcharges; increasing, decreasing or maintaining prices at auctions and trades; division of the market according to a territorial principle, according to the volume of sales or purchases, according to the range of goods sold, or according to the circle of sellers or buyers (customers);

Agreements between non-competing business entities, one of which occupies a dominant position, and the other is its supplier or buyer (customer). The form of agreements is not established by the said Law; therefore, they can be concluded in writing by drawing up one or more documents; through oral agreements at forums, meetings; through coordinated and strictly targeted actions, the purpose of which is to limit competition. In addition, associations of commercial organizations, business societies and partnerships are prohibited from coordinating the entrepreneurial activities of commercial organizations, which may result in restriction of competition.

2. Depending on the number of participants, monopolistic activities of federal executive authorities, executive authorities of constituent entities of the Russian Federation, and local governments are divided into the following types:

1) individual monopolistic activity, which manifests itself in the form of issuing acts or carrying out actions of state bodies and local governments aimed at:

Limitation of independence of economic entities;

Creation of discriminatory operating conditions for individual subjects;

Creating favorable operating conditions for individual business entities by providing them with benefits that put them in an advantageous position in relation to other business entities operating in the market for the same product;

Introducing restrictions on the creation of new business entities in any field of activity, as well as establishing prohibitions on the implementation of certain types of activities or the production of certain types of goods, except for cases established by the legislation of the Russian Federation;

Unreasonably creating obstacles to the activities of economic entities in any area;

Establishing bans on the sale (purchase, exchange, acquisition) of goods from one region of the Russian Federation (republic, territory, region, district, city, district within a city) to another or other restriction of the right of business entities to sell (purchase, purchase, exchange) goods ;

Issuing instructions to business entities on the priority delivery of goods (performance of work, provision of services) to a certain circle of buyers (customers) or on the priority conclusion of contracts without taking into account the priorities established by legislative or other regulatory acts of the Russian Federation;

Creation of unreasonable obstacles to the creation of new business entities in any field of activity, etc.;

2) collective, carried out in the form of agreements (concerted actions). It is prohibited to conclude agreements between state bodies and local self-government bodies with another government or management body or with an economic entity if they may result in a restriction of competition. The purposes of such prohibited agreements may be to maintain, increase or decrease prices; market division; restricting access to the market or eliminating economic entities from it.

• 9.1. The concept and types of monopolistic activity. Types of monopolies.
• 9.2. The concept and forms of unfair competition.
• 9.3. Methods of antimonopoly regulation.
• 9.4. Legal liability for violation of antimonopoly legislation.

The concept and types of monopolistic activity. Types of monopolies

The legal definition of monopolistic activity is contained in paragraph 4 of Art. 1 of the Law of the Republic of Belarus "On combating monopolistic activities and developing competition". Monopolistic activity - actions (inaction) of business entities and government bodies that are contrary to the law, aimed at preventing, limiting or eliminating competition, as well as causing harm to the morals, freedoms and legitimate interests of consumers.

Monopolistic activity is an illegal activity and, therefore, has a composition.

1. Monopolistic activity has several objects of encroachment. The common object of encroachment is directly social relations in the sphere of entrepreneurship, as well as relations developing in the commodity market. There will be two direct objects of encroachment, and in practice it is important to determine these objects, since in one case the crime will have a material element, and in the other - with a formal one.

Thus, if the object is competition itself, then to trigger criminal liability it is enough to violate the Law “On Combating Monopolistic Activities and Development of Competition”, and it is not required that the violation entail any consequences. In this case, the crime will have a formal element.

If the object is the rights and legitimate interests of consumers, then for criminal liability to occur there must be harm, therefore, such a crime will be a crime with a material element.

• 2. The objective side is expressed in actions, consequences and the cause-and-effect relationship between them. The objective side is closely related to the object of the attack.
• 3. The subjects of monopolistic activity are economic entities and government bodies.
• 4. The subjective side is expressed in the guilt of the economic entity. Guilt will always be intentional.

Based on this, we can give the following definition of monopolistic activity in commodity markets.

Monopolistic activity is a harmful act (action or inaction) provided for by law by an economic entity or government body, encroaching on the rule of law in the field of fair competition and aimed at preventing, limiting or eliminating competition.

Monopolistic activities of economic entities are divided into:

• 1) abuse by an economic entity of a dominant position in the product market (individual anti-competitive practice):
• 2) agreements;
• 3) standard terms of transactions.

Individual manifestations of monopolistic activity include abuse by an economic entity of its dominant position in the market, which is prohibited by Art. 5 of the Law “On combating monopolistic activities and developing competition”.

An economic entity occupying a dominant position in the market is prohibited from abusing such a position and thereby undermining the market competitive mechanism by committing acts that have or may result in restricting competition and infringing on the interests of other economic entities or individuals.

Domination in itself is not an offense and cannot be punished. Only abuses of a dominant position are stopped.

When implementing this prohibition, it is important for antimonopoly authorities to establish the existence of a dominant position. In accordance with paragraph 4 of Art. 1 of the Law, a dominant position in a product market is the exclusive position of an economic entity or several goods on the market that does not have substitutes or interchangeable goods, giving it the opportunity to exert a decisive influence on the general conditions of circulation of goods on the relevant product market or to impede access to the product market for other economic entities .

By prohibiting the abuse of a dominant position in the market, the law implies all types of use by an economic entity or group of persons of a dominant position that restrict competition and infringe on the interests of other persons.

Depending on the immediate goals of such abuses and based on the open list of paragraph 1 of Art. 5 of the Law, the following types are distinguished:

• 1) creating obstacles to access to the product market;
• 2) withdrawal of goods from circulation, restriction of production aimed at creating or maintaining a shortage in the commodity market, unjustified, deliberate increase or decrease in prices, as well as the adoption of other measures artificially causing their increase or decrease;
• 3) setting prices to obtain monopoly high profits or eliminating competitors;
• 4) conclusion and (or) execution of an agreement subject to the acceptance of counterparty obligations that are not related to the subject of the agreement or unprofitable for the counterparty in the conscientious execution of the agreement, as well as any other imposition of such conditions or refusal to enter into an agreement;
• 5) conclusion of an agreement that limits the freedom of the participants in these agreements in determining the price or conditions for the provision of supplies in an agreement with third parties;
• 6) conclusion of agreements entailing restriction or reduction of control over production, sales market or development of technical progress;
• 7) the use by a business partner of an unequal approach under equal conditions, including the inclusion of discriminatory conditions in the contract;
• 8) agreement to enter into an agreement only if certain conditions are included in it;
• 9) carrying out other actions or inaction leading to the specified results.

Agreements (concerted actions) that restrict competition are also prohibited by law. It is prohibited in accordance with the established procedure and invalidated the entry into associations or their creation, conclusion and implementation in any form of agreements between business entities, if this has the purpose of:

• 1) division of the commodity market according to the territorial principle, by types, volumes of transactions, goods and prices, according to the circle of consumers;
• 2) exclusion or restriction of access to the product market of other economic entities;
• 3) unjustified increase, or decrease, or maintenance of prices, including at auctions and trades;
• 4) unreasonable restriction on the production of goods;
• 5) refusal to enter into contracts with certain sellers or buyers.

Standard terms of dealing are any pre-formulated terms intended for repeated use that one contracting party sets for another contracting party at the conclusion of the contract and which were not agreed upon in detail by the parties to the contract.

Types of monopolies:

• 1) state monopoly - a system of social relations in which the exclusive right to carry out certain types of activities (including business) has the state represented by certain state bodies or other specially authorized subjects of law;
• 2) natural monopoly - a system of social relations, sanctioned by the state, in which the satisfaction of demand in the commodity market is more effective in the absence of competition due to technological features of production (due to a significant reduction in production costs per unit of goods as its production volumes increase), and the corresponding goods cannot be replaced in consumption by other goods, and therefore demand in a given product market is less dependent on price changes than demand for other goods:
• 3) emergency monopoly - a system of social relations in the commodity market, sanctioned by the state for a certain period, in which competition is absent or limited.

All of the above monopolies are legal.