Professor

Department of Institutional Economics, State University - Higher School of Economics,

Doctor of Economic Sciences

Description of illegal behavior in the Russian antimonopoly legislation of the Russian Federation: impact on the effectiveness of law enforcement

1. Introduction

The article is devoted to the definition of illegal behavior in Russian antimonopoly legislation and its impact on the effectiveness of application of the law. The reason for preparing this article is the adoption in July 2006 of the new law “On the Protection of Competition,” which replaced the laws “On Competition and Restriction of Monopolistic Activities” (1991) and “On the Protection of Competition in the Financial Services Market” (1998). The adoption of the new law reflects the legislator's dissatisfaction with the state of affairs in the field of competition policy. There are a number of explanations for the reasons for this. Firstly, the problems of ensuring and limiting competition in Russian markets are too specific to be solved by using standard tools of antimonopoly legislation. Russia inherited from the Soviet economy a special type of monopoly, which, despite the optimistic attitude of reformers, has not yet been completely overcome.

Secondly, Russian antimonopoly authorities, for various reasons, cannot yet use even those tools of antimonopoly regulation that are at their disposal. These reasons are largely related to the contradiction between the high qualification requirements imposed by antimonopoly legislation, on the one hand, and the insufficient level of economic education of employees of antimonopoly authorities, on the other. An important negative role is also played by the fact that the object of Russian antimonopoly legislation is initially defined much more broadly than in most foreign countries. In addition to the three traditional areas of antitrust regulation - prevention of cartel agreements, prevention of abuse of dominant position (in terms of US antitrust law - monopolization) and antitrust control of mergers - Russian legislation contains rules regarding unfair competition, restrictions on competition by the state, and antitrust requirements for public procurement , and since the adoption of the Law “On Protection of Competition” - also the provision of state assistance. The sheer scale of the tasks that were initially assigned to the antimonopoly authority, with limited resources, could lead to the fact that the main - from the point of view of world practice - functions of the antimonopoly authority are not performed well enough.

Thirdly, Russian legislation is still characterized by a completely unsatisfactory system of sanctions. The upper level of sanctions, in addition to the seizure of illegally obtained (as a result of restriction of competition) profits, up to the present day provides for a fine of 5 thousand minimum wages (that is, half a million rubles). It is also necessary to note that for many types of illegal practices, under the current legislation, sanctions were applied not for the violation as such, but for failure to comply with the order of the antimonopoly authority. Obviously, with such a level of sanctions, it is not profitable for a potential violator to refrain from violating. Sanctions create an insufficient level of deterrence. Moreover, with such low sanctions, it is not profitable for victims of violations of antimonopoly legislation to appeal to the antimonopoly authority or court, presenting evidence of illegal practices. The low level of sanctions negates the potential effect of the application of antimonopoly legislation, regardless of its other content. Of course, it cannot be said that the antimonopoly laws hitherto in force in Russia perfectly separated legal and illegal actions of market participants - we will show that this is far from the case. However, even if the content of the laws were significantly better, at the current level of sanctions they would not have the desired impact on the behavior of large companies. This problem is all the more acute because a feature of antimonopoly rules is their application expost: influence on decision making is carried out by influencing incentives, and not by describing legal (prescribed) actions.

Fourthly, the very description of illegal practices in Russian antimonopoly legislation was very imperfect. It should be noted here that, in principle, the Russian legal system places much higher demands on the content of norms than in other countries. Moreover, the matter here does not come down to the legal tradition of codified law. For example, the legislation of the European Union - the norms of which were the model for both the first and the current version of the Russian law - does not provide for a detailed description of all types of illegal practices in one law. Only two articles of the Treaty of Amsterdam (formerly Rome) serve as a “single law”, prohibiting agreements restricting competition and abuse of a dominant position, respectively. Separate regulatory norms developed and adopted at different times are devoted to a detailed description of illegal practices, the procedure for their establishment, the actions of the antimonopoly authority, the principles and procedure for applying sanctions. A detailed description of all types of illegal practices, similar to the Russian one, is contained, perhaps, only in the antimonopoly law of Germany. The antimonopoly law in Russia bears a much greater responsibility to the law enforcement system - it must comprehensively and consistently describe all types of illegal practices. This requires a description of not only the content of illegal practice, but also its characteristics. Over time, signs of illegal practices are described in more and more detail. If the Law “On Competition” of 1991 took up one and a half printed pages, then the Law “On Protection of Competition” already took three and a half. More detailed description of illegal practices is obviously a double-edged sword: on the one hand, it should help those applying the law to identify illegal practices in various forms. On the other hand, participants in the law enforcement system - whether in good faith or not - often interpret detailed provisions of the law in such a way that the law should describe all possible forms of abuse of dominance. Then any practice formally that does not comply with what is described in the law is perceived as legal.

The above means that the very description of prohibited actions in the Russian antimonopoly law plays an exceptionally large role in comparison with foreign antimonopoly legislation. This justifies the analysis of the description of illegal practices in this article. The rest of the presentation is organized as follows. The second paragraph discusses the sources of errors in the application of antitrust laws and two alternative ways to avoid these errors - in the way of applying the rules and in the way of formulating the rules. The third paragraph is devoted to the analysis of the description of illegal practices in the Law “On Protection of Competition” (2006) from the point of view of how the new rules (compared to the content of the Law “On Competition” (1991)) affect the scale and direction of errors in the application of antimonopoly law .

2. Antimonopoly rules: how to look for a balance between type I and type II errors

The difference between antitrust law and many others is that it appeals to a high level of economic analysis. This raises two problems. The first is that in many cases a “naive” assessment of economic behavior that is not based on economic theory contradicts the assessment by legislation. The second problem is related to the fact that even a qualified economist is not always able to separate illegal from legal behavior.

A classic example is antimonopoly legislation on such a form of abuse of dominant position as predation. In Russian antimonopoly legislation, it is associated with the concept of a “monopoly low price”, the purpose of which is to oust a competitor from the market. To a “naive” economic analysis, it is not clear why a monopolist who charges a price “too low” is as dangerous to social welfare as a monopolist who sells a product “too expensive.” Only the entire concept of predatory pricing can explain the logic underlying the antimonopoly rule: indeed, when ousting a competitor from the market, the monopolist is forced to increase consumer gains by lowering prices. Arguing within the framework of the theory of industrial markets, we say that this gain, if certain prerequisites are met, does not compensate for the losses that consumers will suffer in the future when prices increase
. However, antitrust laws are applied not at the moment when the price rises after ousting a competitor, but at the moment when it is low. Using a “naive” approach, one can accuse the antimonopoly authority of preventing actions that are beneficial to the consumer (after all, a price increase should happen in the future, and only with some probability).

However, problems are also possible when the rules on predation or monopolistically low prices are applied by a fully qualified economist. Predation theory assumes that the purpose and logic of a market participant's decision-making is known to us. However, in a real market, the logic of decisions can become known only after a long time - and even in this case, it can be the object of various, including quite contradictory, interpretations. Indicative in this sense is the discussion organized by the magazine “ JournalofEconomicPerspectives» regarding the case against Microsoft regarding the predatory exclusion of the company's browsers from the market Netscape. Independent authors interpreted the company's actions in completely different ways. Microsoft. A qualified economist is not always able to determine whether the specific actions of a large seller constitute predation or normal competition. It is all the more difficult to formulate in advance the criteria separating predatory actions from “normal” (in fact, welcomed) competition at the legal level.

The complexity of business practice leads to the fact that the application of antimonopoly legislation inevitably leads to errors of both type I (illegal practices are recognized as legal) and type II (legal practices are recognized as illegal). It is impossible to completely avoid these mistakes; the goal of the author of the rules can only be to reduce the loss of public welfare from the action of “bad legislation.” Welfare losses, in turn, include both the objectively excessive costs of the antimonopoly authority and market participants in applying antitrust laws, and the losses to society from the incorrect design of incentives within the framework of “poorly formulated” rules.

It can be said that there are two fundamental approaches to reducing errors in the application of antimonopoly legislation. The first approach is to take into account the competition and social welfare effects of specific conduct when applying antitrust laws. This is the so-called principle of a “balanced approach” or “rule of reasonableness” ( ruleofreason) as opposed to the application of antitrust laws perse(according to the letter of the law). The application of legislation based on the “balanced approach principle” suggests that an action itself cannot be considered illegal unless it has been established and proven that its negative impact on welfare exceeds its positive impact (simply put, it does more harm than good). . In the practice of American antitrust law, the principle of a balanced approach is applied in such a way that in order to make a guilty verdict, the judge must not only confirm the fact of illegal actions, but also accept evidence that the losses from the negative impact on competition exceed the gains. In EU competition law, the application of the principle of a balanced approach is specified even more specifically. Examples are the three-list system and group exclusions. The “three lists” system involves dividing the types of practices into permitted, prohibited and requiring additional analysis. For example, the “three lists” apply to vertical agreements and state aid. Group exemptions provide that certain industries (agriculture, automotive, insurance) and certain types of practices (franchising contracts, exclusive dealerships, research and innovation agreements) are completely or partially exempted from the antitrust regime. A balanced approach can be taken as expost, so exante: An example of the latter is the practice of notifying agreements. Voluntary notification of agreements between market participants implies that the antimonopoly authority is asked to compare future losses and gains from its action: if the restrictions on competition are insignificant compared to the gains from the agreement, it is declared permitted. The parties to the agreement are exempt from liability even if a later agreement does have a negative impact on competition.

However, let us ask ourselves the question: is a balanced approach as a general principle of applying antitrust legislation a good way to increase its effectiveness? The answer will be no for several reasons. First, the measured approach imposes too high enforcement costs. Secondly, it introduces uncertainty into law enforcement, which cannot but affect the incentives of market participants. If any action can be justified, the incentive to refrain from taking any action is greatly reduced. To put it very roughly, the more cases the antimonopoly authority considers on the basis of a balanced approach, the more the belief that, detrimental to the effectiveness of antimonopoly policy, that “the law is like a pole, turns out that way,” becomes stronger in the minds of market participants.

In fact, the division of practice itself into that in respect of which the legislation is applied “by the letter of the law” into that in respect of which a “balanced approach” is necessary can be considered as the result of a comparison of the risks and costs associated with errors of type I and type II. When certain actions (for example, agreements in the field of research and innovation) are excluded from the scope of antimonopoly legislation, this does not mean that the legislator is confident that it is impossible to restrict competition through these agreements. It would be more accurate to say that the total cost of weighing the positive and negative effects would be too high in the analysis of each such agreement. Similarly, when the law applies to price fixing perse, this does not mean that this practice can never bring positive effects. However, the transition to the weighting principle in this case would be accompanied by too high losses compared to the expected benefits - both because in fact most price agreements lead to a decrease in welfare, and because in the eyes of market participants price collusion would begin to look less dangerous form of offence.

It is worth noting the big problems of measuring gains (in terms of Russian antimonopoly legislation - positive socio-economic effects), which could compensate for losses from restricting competition. Most countries use several useful principles for such assessment, each of which is far from flawless in theoretical terms. For example, it is proposed to use only the gains of consumers, but not producers, as a positive socio-economic effect. At first glance, this approach contradicts microeconomic theory, which includes the gains of both consumers and producers in social welfare. However, the motives for this principle are not difficult to understand. If we include in the concept of “positive socio-economic effect” the gains of producers (given the impossibility, or rather, the extremely high cost of an accurate quantitative assessment), there will be a risk of justifying restrictions on competition as nothing other than obtaining monopoly profits. Examples of this can easily be found in Russian antimonopoly legislation. The settlement agreement in the FAS case against the Eurocement group of companies, signed on June 30, 2006, states that the establishment of an objectively monopolistic high price was simultaneously accompanied by a positive socio-economic effect. The characteristics of this positive effect are as follows: “ Along with the increase in the price of cement to a monopolistically high level, the Applicant’s activities had a certain positive socio-economic effect. In particular, tax revenues to the budget have increased, the investment attractiveness of the industry has increased..." It is easy to see that the growth in tax revenues to the budget from a price-raising seller is completely natural, moreover, inevitable (due at least to an increase in profits and income taxes). Likewise, an increase in price and monopoly profit guarantees an increase in the investment attractiveness of the dominant market. Obviously, the qualification of such effects as compensating for the establishment of a monopoly price creates opportunities to justify almost any restriction of competition.

Thus, there is an optimal scope for applying the principle of a balanced approach; going beyond the boundaries of this sphere reduces the effectiveness of the application of legislation. The main tool within this boundary is the design of norms, which in themselves would allow avoiding errors of the first and second types. At the same time, as P. Joskow shows, one of the first to show the role of institutional analysis in the design of antimonopoly norms, “good” norms from the point of view of the balance of type I and II errors may turn out to be “bad” from the point of view of the results of the analysis of specific antimonopoly cases. Another problem is the contradictory interaction between the costs of applying a norm (or its “simplicity”) and the magnitude of errors, which tend to increase as the norm becomes simpler.

Joskow gives the example of predatory behavior we already mentioned. In order to obtain a predatory conviction, American antitrust law must demonstrate, first, the “reimbursement test” and, second, charging a price below (or a substitute for) marginal cost. This practice is often criticized by pointing out that the seller's behavior may be truly predatory, but it will not be possible to establish that the price was charged below marginal cost. Joskow's response to this criticism is as follows: Indeed, we do not deny that such situations exist. However, changing the current rules (abandoning the price-below-marginal-cost test) would impose high costs on the courts of applying the rule, which would exceed the expected benefits.

An additional problem arises from the fact that good economic theory is not a condition for the development of good legal rules. In this regard, Joskow analyzes the example of the case against Kodak. At the end of the 1980s. Kodak was accused of limiting competition in the market for spare parts and components, as well as repair of equipment manufactured by the company. Important components of the case were the identification of the boundaries of the market—whether the market could be defined as a market for servicing Kodak equipment—and the related measurement of the market power of the seller. The Supreme Court ultimately made its decision based on a narrow definition of the boundaries of the market and the perception of Kodak's high market power within it. From the point of view of institutional theory, the Kodak company certainly has power over equipment buyers, but this power is not associated with market power in the sense of antitrust regulation, but with the dependence of counterparties “locked-in” in bilateral contractual relations. Identifying such power with market power in the understanding of antimonopoly legislation, from Joskow’s point of view, is dangerous because it unjustifiably expands the scope of the latter’s application. Participants in long-term contractual relationships could consider the use of antitrust laws as a way to resolve conflicts arising over the redistribution of quasi-rents. In this context, from Joskow's point of view, it is necessary to draw a clear line between market power and exante, which creates the object of application of the antimonopoly law, and market power expost.

Having considered the general problems of the design of antimonopoly legislation, we will consider the novelties of Russian antimonopoly legislation from these positions.

3. New Law “On Protection of Competition” (2006) and changing the balance of errors of type I and II

Interest in the new norms of antimonopoly legislation is caused not only by the very fact of the adoption of the law as such. There are other reasons why possible errors in the application of legislation may become more important in the future. Firstly, this is the growing activity of the antimonopoly body - the Federal Antimonopoly Service, starting with the change of leadership in the spring of 2004. The Antimonopoly Service is not limited to the “historically established” circle of responsibility, on the contrary, it seeks to expand its participation in new areas of activity - the allocation of limited resources by the state, public procurement, government assistance, etc. Not only the actual enforcement of the law is becoming more active: there is a desire to promote both the gains from competition in markets and the role of the antimonopoly service in ensuring competition. Secondly, in the near future we can expect a change in the system of application and the magnitude of sanctions. Amendments to the Code of Administrative Offenses have been introduced to the State Duma. These amendments provide for a new system for calculating sanctions for market participants - as a percentage of turnover, as well as increasing the level of sanctions - from one hundredth to one twenty-fifth of the annual turnover for participation in an agreement restricting competition, from one two hundredth to one fiftieth of the annual turnover for abuse of a dominant position .

In addition to increasing sanctions for violations, what is new to Russian antimonopoly legislation is the provision of exemption from liability subject to the voluntary provision of information to the FAS that makes it easier to prove the guilt of the remaining participants. This measure is aimed at ensuring cooperation with the antimonopoly authority of violators in the most complex category of cases - cartel agreements.

The new level of sanctions, coupled with the higher activity of the Russian antimonopoly authority, should increase the significance of Type I and II errors in the application of legislation - both in the form of costs for market participants, either victims of illegal practices, or unreasonably found guilty, and due to the increased impact on the incentives of market participants.

Without considering the content of the entire law as a whole, we will focus only on the innovations related to the general definition of illegal practices, to combating cartel agreements, to preliminary antimonopoly control of economic concentration transactions and to the problems of antimonopoly regulation of the state's influence on competition.

3.1. Signs of restriction of competition

The new law, just like the previous one, defines competition and monopolistic activity. However, unlike the previous law, the new one additionally introduces signs of restriction of competition (Article 4) in the following wording:

« signs of restriction of competition - a reduction in the number of business entities not included in one group of persons on the product market, an increase or decrease in the price of a product not associated with corresponding changes in other general conditions for the circulation of goods on the product market, refusal of business entities not included in the same group of persons , from independent actions on the commodity market, determination of the general conditions for the circulation of goods on the commodity market by agreement between business entities or in accordance with the instructions of another person that are binding on them, or as a result of agreement by business entities that are not part of the same group of persons of their actions on the commodity market , as well as other circumstances that create the opportunity for an economic entity or several economic entities to unilaterally influence the general conditions of circulation of goods on the commodity market».

How will the very fact of introducing signs of competition restrictions into the law affect the results of the application of legislation, given that, in a general sense, it is competition restrictions that make up a significant share of illegal actions? In my opinion, this will lead to increased costs of proving illegal practices. In any case, it would be completely rational for violators of antitrust laws to require the prosecution (the antitrust authority) to prove the fulfillment of at least one of these criteria. How the probability of type I and type II errors will change depends on how correctly the signs of restricting competition are formulated. Let's look at some of them in more detail.

1. “Reduction in the number of economic entities” - may accompany a restriction of competition, but is far from necessary. At least two situations of restricting competition are possible, which are not accompanied by a decrease in the number of economic entities: in the first case, there is historically a single seller on the market (for example, a natural monopoly entity), who, thanks to restrictions on competition, continues to remain lonely; in the second case, the number of market participants increases with the simultaneous growth of the largest company, limiting competition.

2. “Other circumstances that create the opportunity... to influence the general conditions of circulation of goods...” - in this case, the law determines not the signs of the actions of market participants, but the signs of a certain market structure. The position looks unconvincing, given that the market structure itself, no matter how high the incentives to limit competition, it creates, cannot in the slightest degree be considered as evidence of illegal actions.

Thus, a completely innocent addition to the antimonopoly legislation at first glance leads to an increase in errors of both kinds. At the same time, as already indicated above, the very claim to formulate the signs of restriction of competition in an exhaustive manner may in the future negatively affect the conditions of law enforcement.

3.2. Cartels: the problem of “explicit” and “tacit” collusion

As is known, cartels are the most dangerous form of restriction of competition. Historically, it was cartels (along with restricting competition on the part of large companies) that were the main object of opposition from the state. At the same time, the fight against cartels is one of the most problematic areas of antitrust regulation throughout the world. The main difficulty is that illegal price fixing is traditionally not easy to prove: violators do not leave direct evidence of the agreement. As for indirect evidence (based on data on prices and other terms of transactions), both in international practice, and especially in modern Russia, this kind of evidence is with great difficulty recognized and used by the courts. In addition, modern economic theory suggests that in order to coordinate prices and other terms of transactions between companies, they do not need to enter into agreements, even secretly - a mutual understanding of the benefits that market participants will receive by refusing to compete with each other is sufficient. In conditions of such “tacit” or “tacit collusion,” coordination of activities between companies becomes unprovable by definition - since, in essence, there is nothing to prove.

One of the most serious problems of antitrust law is whether “coordination in the absence of coordination” is considered an illegal practice in principle. In the literature one can find the statement that in American antitrust law, tacit collusion is legal (since there is no collusion as such), while in European antitrust law it is illegal. However, an analysis of the practice of applying antimonopoly laws shows that the situation is not so simple. Indeed, in European antitrust legislation there is a special concept of “concerted practice”, which differs from collusion as such. However, back in the American Tobacco case (1946), which serves as an important precedent for the application of the conspiracy rule, the US court stated: “ It is not necessary to prove the existence of a formal agreement to establish the existence of an unlawful conspiracy.», conspiracy is considered proven “...if the circumstances of the case convince the court that the participants in the conspiracy pursued common goals, had a plan of action and were aware of its goals”. Obviously, here we are talking about a “broad” understanding of conspiracy. It was precisely this broad understanding of conspiracy that the American court was guided by when it declared illegal the coordination of pricing policies by turbine generator manufacturers General Electric and Westinghouse (1975), in the absence of evidence of collusion between them. At the same time, the European Court acquitted the case in WOOD PULP (1984) due to the lack of sufficiently convincing evidence of concerted conduct - although this appears to have been no weaker than in the case of US turbine generator manufacturers. Thus, the opposition between European and American traditions in this matter is questionable. The only thing that can be stated is that, indeed, the line between “explicit” and “implicit” collusion, between illegal and legal behavior in this matter is not as clear as we would like.

Russian antimonopoly legislation, following the European one, has historically followed the tradition of separating such practices as agreements and such practices as concerted actions. This position was convincingly proven and justified in a case against dealers on the motor gasoline market by specialists from the St. Petersburg Department of the FAS. In this case, the court agreed with the arguments of the antimonopoly authority. The new antitrust law uses two additional tools to address “tacit collusion”: a clarification of the definition of concerted action and the doctrine of “collective dominance.”

Concerted actions are defined in Article 8 of the law as follows:

"1. Concerted actions of economic entities are actions... that satisfy a combination of the following conditions:

1) the result of such actions corresponds to the interests of each of the specified economic entities only on the condition that their actions are known in advance to each of them;

2) the actions of each of these economic entities are caused by the actions of other economic entities and are not a consequence of circumstances that equally affect all economic entities in the relevant product market….

2. The performance of actions by economic entities under an agreement does not apply to concerted actions.”

The meaning of the second point - despite all its strangeness from the point of view of the Russian language - is clear: “tacit” collusion is separated from overt collusion. The first point, in turn, in a certain sense is a retelling of the concept of Nash equilibrium in repeated games, although the retelling is not entirely correct. In economic theory, the dominance of the “trigger hand” strategy (“I will not reduce the price in a given period unless another seller has reduced the price in the previous period and will reduce otherwise”) does not at all imply that the actions of sellers are known in advance to each of them . How will the adoption of this article affect the effectiveness of the application of legislation? In my opinion, rather positive. The additional separation of concerted actions from agreements - defining them as different types of illegal actions - is in itself important, since over the past fifteen years, when considering antitrust cases, the question of whether the concepts of “agreements” and “concerted actions” are synonymous or not, popped up several times. However, the requirement that the actions of other participants be "known in advance" to other participants seems too strict - this can be easily seen by comparing the court's determination in the American Tobacco case that " participants must be aware of the overall plan of action and understand its goals».

The inclusion of the doctrine of “collective dominance” in antimonopoly legislation appears somewhat more controversial. Previously, Russian antimonopoly legislation used only the idea of ​​unilateral dominance - the ability of a large company (with a market share of at least 35%) to influence the parameters of market equilibrium. Now the new law (Article 5) contains the following characteristics of dominance:

“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 fifty percent, 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 on the relevant product market exceeds seventy percent (this provision does not apply if the share of at least one of the specified economic entities is less than eight percent);

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

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

Most likely, the source of the formulation of the doctrine in this form was the German antitrust law. Note that, in contrast to unilateral dominance, the definition of collective dominance includes features of the market structure that stimulate collusion. The inclusion of such a definition in the law means that not only a large company, but also each of several “collectively dominant” large companies can be accused of illegal practices.

In order to assess the impact of new rules on the effectiveness of competition policy, it is necessary, in my opinion, to consistently answer three questions:

1. How accurately does the law describe the market structure that creates incentives for collusion?

2. Do norms about collective dominance describe the same object as norms about concerted action?

3. Finally, if the answer to the last question is yes, how will the possibility of errors be affected by the use of two rules for the same practice in the law?

The answer to the first question will be mixed. On the one hand, the small number of sellers, high entry barriers and information openness of the market are the most important factors stimulating tacit collusion. In turn, the stability of market distribution between participants serves as one of the important indicators of the presence of collective agreement. On the other hand, there are clearly unsuccessful formulations in the definition of collective dominance. For example, “the product cannot be replaced by another” simply means that the market boundaries—the definition of which is the first necessary component of the antitrust analysis—have been correctly identified. The situation is more complicated with the “insufficiently high” price elasticity of demand. Indeed, low elasticity of demand stimulates the maintenance of tacit collusion between participants. However, the language of the law assumes that there is some “normal” value for the elasticity of demand that is known to antitrust authorities and courts, who must determine the deviation of the actual elasticity of demand from the specified normal value. If we assume for simplicity that inelastic demand means demand with elasticity below 1 (modulo), the situation is even worse. If companies, as part of a tacit conspiracy, maintain a price close to the monopoly, the elasticity of demand at a given price is always greater than one. Then the specified condition will not be fulfilled within the framework of any of the “tacit agreements”. Thus, in defining a market structure that creates incentives for tacit collusion, there are elements that can potentially be a source of Type II errors.

Let's move on to the second question. In my opinion, the rules on collective dominance have the same object as the rules on concerted action, with the only difference being that the former describe the structure of the market, and the latter describe the behavior of firms in this market. The purpose of such doubling of the description of an object in the same law should most likely be to reduce the costs of proving coordination between market participants. If we approach this issue strictly, then since domination itself is not an illegal practice, the presence of two groups of norms cannot automatically lead to additional errors. However, in practice this will depend on the interpretation of the application of the rules. There are two possible options here that are dangerous for the effectiveness of law enforcement. In the first case, the understanding that collective dominance describes the structure of the market, and concerted actions - the behavior of sellers in this market, can be interpreted in such a way that a mandatory component of proof of concerted actions is proof of the presence of collective dominance in the market. In turn, as shown above, the definition of collective dominance is far from perfect from the point of view of economic theory. The second interpretation suggests that the abuse of collective dominance is a special type of illegal practice, distinct from both agreements and concerted actions. This approach looks artificial, but given the accumulated practice of applying Russian antimonopoly legislation, it cannot be considered completely excluded. In both cases, the risks of errors and the costs of applying antitrust law obviously increase.

Thus, the novelties aimed at preventing silent collusion in the law “On Protection of Competition” are far from indisputable. On the one hand, the legislator is making efforts to reduce the scale of type II errors - that is, to increase the likelihood of detection and punishment of participants in a silent conspiracy. On the other hand, the use of new norms requires a very high level of economic analysis, and even a completely conscientious interpretation of these norms can lead to additional errors of the same type II. However, deviations in the exact opposite direction cannot be excluded.

3.3. Preliminary control of merger transactions: a step towards business and/or an opportunity to improve the quality of regulation?

Preliminary control of economic concentration transactions is one of the three basic components of the activity of the antimonopoly authority. The goal is to prevent changes in market structure that are extremely unfavorable to competition. However, the separation of legal from illegal practices in this case is of a relatively formal nature: not transactions that impede competition are recognized as illegal, but transactions that are subject to antimonopoly control and carried out outside it. The divide between legal and illegal behavior is created by defining those transactions that fall under the prior approval regime.

The scope and forms of preliminary antimonopoly control of merger transactions have been the main target of criticism of antitrust regulation from business for more than ten years. The transaction control criteria were inadequate for the purposes of antimonopoly regulation, both in terms of determining an economic concentration transaction and in terms of selecting the minimum scale of transactions that are subject to preliminary concentration.

Not only mergers and acquisitions of large blocks of shares in companies, but also mergers of non-profit organizations were subject to approval. Approval was required from the antimonopoly authority for the acquisition of each block of shares if, as a result of the transaction, the buyer had more than 20% of the total share capital. Until October 2002, transactions involving enterprises with a book value of assets over 100 thousand minimum wages (10 million rubles) were subject to preliminary approval, and from October 2002 to February 2005 - over 200 thousand minimum wages (20 million rubles). It is obvious that the scope of preliminary antimonopoly control was defined too broadly, including market participants whose transactions could not have a significant impact on competition - but who also incurred additional administrative costs. A similarly low threshold for preliminary control of economic concentration transactions was established for financial organizations.

We will show which companies were subject to preliminary control. According to the State Statistics Committee of the Russian Federation, in 1999 the book value of assets of enterprises, for example, light industry, was about 81.5 billion rubles. Since there are 4,515 enterprises in the industry, the book value of the assets of the “average” of them is more than 18 million rubles, or 1.8 times higher than the minimum bar, which requires preliminary approval of economic concentration transactions with the antimonopoly authority. In other industries, the excess of the book value of the assets of an “average” enterprise over 100 thousand minimum wages (10 million rubles) is even higher: 4.5 times - in the forestry, woodworking and pulp and paper industries, 6 times - in the building materials industry, 6.7 times - in the food industry, 20 times - in mechanical engineering and metalworking, 67 times - in non-ferrous metallurgy, etc. In other words, in accordance with the given criteria for preliminary approval, transactions between market participants were required significantly below the average size.

Such regulation led to the fact that the approval of merger transactions quantitatively suppressed other types of activities of the antimonopoly authority. According to the FAS, in the period from 2002 to 2004. the number of considered petitions and notifications about mergers and acquisitions of shares was at the level of 23-24 thousand per year. This is approximately four times more than the number of cases considered for other types of violation of antimonopoly legislation. In many ways, it is the scale of preliminary antimonopoly control that explains the fact that for the vast majority of transactions it was reduced almost to a formal verification of the compliance of the submitted documents with the requirements of the law. The current regime of preliminary control of economic concentration not only placed an excessive administrative burden on business, but also suppressed the effectiveness of the activities of the antimonopoly authority itself.

Let's show this with just one example. As is known, there are three options for the results of a preliminary antimonopoly analysis of a transaction: the transaction is prohibited, the transaction is permitted, the transaction is permitted under additional conditions aimed at limiting competition. Conditions of this kind are divided into two groups: structural and behavioral. Structural conditions require companies to spin off parts of their business into separate units that are sold to independent sellers or otherwise reorganize their business. Behavioral conditions suggest that companies have responsibilities regarding market behavior. The relative effectiveness of structural and behavioral deals is mixed. On the one hand, as P. Joskow rightly notes, the implementation of structural conditions will not ensure competition if the planning of structural conditions does not take into account transaction costs arising in contracts between divided participants. On the other hand, setting specific behavioral conditions requires even more complete knowledge of the future state of demand and market structure. In a broader context, it is often argued that the widespread use of behavioral conditions means that the competition authority is performing an unusual regulatory function, as opposed to the function of preventing restrictions on competition. If behavioral conditions are put forward in a general form, the costs of monitoring the fulfillment of these conditions increase. In general, the accuracy and specificity of the additional terms of a transaction can serve as an indirect but very important indicator of the efforts made by the competition authority to analyze the competition implications of a particular transaction.

Gazprom's acquisition of a controlling stake in Sibneft was the largest merger transaction of 2005 - the total turnover of the participants was estimated at approximately $14 billion. Without assessing in detail the motives and results of this transaction, it is obvious that it can have a serious impact on the conditions of competition both in the gas market and in the oil products market. However, to ensure competition, the FAS put forward only six behavioral requirements for transaction participants listed below:

« 1. If there are offers from oil suppliers
if technically possible, enter into contracts for the purchase and sale and/or provision of oil refining services with such suppliers on terms that do not allow a group of persons to compensate for unreasonable costs at the expense of third parties, as well as do not discriminate against oil suppliers not included in the group of persons... ;

2. A group of persons does not allow the withdrawal (stopping) of production facilities ... without technological reasons in the case of proposals from third parties for the consumption of services for oil refining and LPG production at the specified facilities and if it is possible to provide these services based on the break-even principle ...;

3. Enterprises of a group of persons enter into contracts for the purchase and sale of liquefied petroleum gas with counterparties on terms that do not allow the group of persons to compensate for unreasonable costs at the expense of third parties;

4. A group of persons should not take actions (inaction) aimed at limiting the supply of petroleum products... produced by enterprises that are members of the group of persons to buyers not included in the group of persons, if such supplies are possible based on the total volume of production...;

5. A group of persons does not allow actions (inaction) aimed at limiting the ability of business entities to supply and sell petroleum products in regions in which a group of persons occupies a dominant position in the market for the wholesale and retail sale of petroleum products;

6. If there are proposals from third parties (owners of petroleum products) or persons authorized by them, and if there is a technical possibility, enter into contracts for the provision of services for the storage of petroleum products on terms that do not allow an unequal position with organizations belonging to a group of persons in the regions, in in which a group of persons occupies a dominant position in the wholesale market for petroleum products».

It can be seen that the conditions put forward are very vague, which makes monitoring their implementation a difficult task; At the same time, the very wording of what is unacceptable for the participants in the transaction almost verbatim repeats the description of illegal practices within the framework of the current antimonopoly legislation. In other words, the behavioral requirements put forward are almost useless, not only because their implementation is difficult to control, but also because they are trivial: the parties to the transaction are actually required to simply comply with the current legislation.

Increasing the efficiency of preliminary antimonopoly control required narrowing the boundaries of preliminary control. Under pressure from the FAS, the legislator took appropriate steps. Even before the adoption of the new law “On the Protection of Competition,” the limit of transactions requiring preliminary control was sharply increased: from February 2005, companies with a book value of assets over 3 million minimum wages (that is, 300 million rubles) had to undergo it. In accordance with the new law, preliminary control is required if the total book value of the assets of the parties to the transaction exceeds 3 billion rubles, or the annual turnover exceeds 6 billion rubles, and the book value of the assets of the acquired company is at least 150 million rubles ., or if one of the parties to the transaction is included in the register of companies with more than 35% of the market. It is easy to see that the lower limit on the size of a company requiring pre-merger review is somewhat higher than that required by US antitrust laws.

How significantly did raising the limit of economic concentration transactions change the matter, first by doubling to 200 thousand minimum wages (2002), and then by 15 times to 3 million minimum wages (2005), and finally by another 10 times to 3 billion rubles. (2006)? According to data for 2004, one enterprise in Russian industry accounted for 46 million rubles of fixed assets, from 3 million rubles. in light up to almost 1 billion rubles. in the electric power industry. If we assume that 70% of the book value of assets is formed from fixed assets, then according to the rules in force before February 2005, “medium-sized” enterprises in all industries except pulp and paper and light industry were subject to the pre-merger regime. After increasing the limit value of the book value of assets to 3 million minimum wages (300 million rubles), “medium-sized” enterprises began to meet the criteria for the lower limit of preliminary control only in the electric power industry, the fuel industry, and ferrous metallurgy. Even a minor change to the law that was already in force sharply reduced both the excessive administrative burden on business and the costs of the antimonopoly authority in applying the law. Finally, the Law “On Protection of Competition” raised the limit of preliminary control to a level of more than twice the book value of assets in these industries.

According to the turnover criterion (which can roughly be considered equal to sales volume), according to the Law “On Protection of Competition”, transactions are subject to preliminary approval if the total annual turnover of the merging companies exceeds 6 billion rubles. In 2004, the average revenue of a Russian industrial enterprise was 73 million rubles. – from 8 million rubles. in light industry up to 1 billion rubles. in the fuel industry. Even taking into account that Russian enterprises are part of groups (the typical number of group members is 8), we can conclude that the introduced boundaries of preliminary approval reduce the likelihood of applying the preliminary approval regime to a “typical” Russian company to very small values. Preliminary approval requires affiliation with larger companies of “medium” enterprises in the electric power industry, fuel industry, ferrous and non-ferrous metallurgy. This choice of the object of the preliminary approval regime seems reasonable.

The new law takes steps forward not only in setting the boundaries of preliminary control, but also in the very definition of an economic concentration transaction. Although in Article 4 of the law, a transaction of economic concentration is defined very broadly - as any transaction, the implementation of which “has an impact on the state of competition”, however, in fact, in Chapter 7 of the law, the understanding of economic concentration is as close as possible to the concept of redistribution of control. Only transactions between commercial enterprises require preliminary approval; associations of non-profit organizations are exempt from the preliminary approval regime. Share acquisition transactions require prior approval only if the buyer has a significant stake: exceeding 25%, 50% or 75%. Finally, if certain conditions are met, the redistribution of shares within a group of persons is excluded from the prior approval regime. The reduction in the burden of administrative procedures placed on Russian companies thanks to these innovations could be significant, given that about 40% of Russian enterprises belong to holdings and business groups.

3.4. State aid: a new area of ​​antitrust control

As already indicated, initially a feature of Russian antimonopoly legislation, in comparison with most foreign countries, was a much wider scope of application. In addition to large companies that can have a negative impact on competition, the objects also include government authorities.

In addition to the rules on the illegality of restrictions on competition by authorities (including agreements restricting competition between authorities and market participants), the new law introduces new rules regarding state aid. In this case, we cannot talk about the effectiveness of law enforcement, since until now state aid simply has not been the object of antimonopoly regulation. However, some conclusions can be drawn about how expected enforcement costs compare with optimal ones.

The law introduces a regime of preliminary approval of each act of state aid. Within two months, the antimonopoly authority must decide on the admissibility of assistance, comparing its positive results with the negative impact on competition. The law itself also introduces criteria for dividing state aid into acceptable and unacceptable. However, even permissible state assistance requires preliminary approval from the antimonopoly authority if its provision is not provided for by the laws of the Russian Federation and the constituent entities of the federation, legal acts of municipalities and if it is not provided at the expense of the reserve fund. For comparison, in the EU, in relation to state aid, there is a “three lists” system, in which aid is divided into acceptable, unacceptable and requiring preliminary analysis. It is easy to see that in the norms of Russian law the possibility of applying a balanced approach exante is far from being fully used.

State aid itself is defined in the law very broadly - as “ provision by executive authorities of benefits to business entities that provide more favorable conditions for competition in the market" Given the impossibility of defining all types of state assistance, paragraph 2 of Article 19 goes from the opposite - it contains a definition of what is not included in this concept.

It is still difficult to assess the scale of the impact of the new regulations on competition. It is not yet clear whether the antimonopoly authority will be able to cope with the task of preliminary approval of state aid if the number of approvals is large enough (this can be expected given the broad definition of state assistance used). It is precisely the overly broadly defined object of pre-merger control that has led to the low effectiveness of this area of ​​activity; It is difficult to argue that such a result is excluded for the preliminary analysis of state aid.

It can be noted that, by introducing rules on the illegality of state aid that restricts competition, the legislator did not use an important opportunity to reduce the costs of law enforcement. The law does not contain a requirement for transparency in the system of providing state aid, although precisely under this condition there is a higher likelihood of disclosing information about state aid that restricts competition. No one has greater incentive to characterize government assistance as anticompetitive and illegal than the government aid recipient's competitors.

To summarize, government assistance regulations are likely to generate excess (for a given economic impact) enforcement costs.

Using the example of only a few individual problems of antimonopoly regulation, the article shows that the new law “On the Protection of Competition” (2006) differs significantly from the previously existing “On Competition and Restriction of Monopolistic Activities” (1991). There is at least one area where the benefits of the new law are undeniable - preliminary merger control. The rules regarding “tacit agreement”, where the new law introduces many innovations, deserve a mixed assessment. On the one hand, the antimonopoly authority receives additional leverage in the fight against parallel behavior. On the other hand, the level of economic analysis becomes a critical factor in the application of these standards. In addition, the norms themselves contain provisions that increase the likelihood of type I and type II errors. It is no less difficult to assess the quality of the rules on state assistance; it is only noticeable that the legislator did not use the obvious opportunities to reduce the costs of law enforcement. Finally, the law also contains frankly unsuccessful novelties. These include signs of restriction of competition, which do not provide a list of either necessary or sufficient signs, and at the same time may well be used by violators of the law to refute the argumentation of the antimonopoly authority.

Many of them are discussed in the collective monograph: The influence of competition and antimonopoly regulation on the processes of economic modernization in Russia. M. TEIS, 2005.

See, for example, Yakovlev on the limitations of liberal reforms in the Russian economy. Economic Journal of the State University-Higher School of Economics, 2001, volume 5, no. 1, pp. 41-56.

This reason is all the more important because for employees of antimonopoly authorities over 30 years old it is necessary to talk not even about a shortcoming, but about absence economic education as such. The knowledge that was provided by Soviet higher educational institutions - and sometimes continues to be provided by Russian ones - in general cannot form the normal basis for the application of antimonopoly legislation.

For more information about the sanctions system, see Tambovtsev Application of Antimonopoly Laws for Participants in Russian Markets. In: The influence of competition and antimonopoly regulation on the processes of economic modernization in Russia. M., TEIS, 2005.

Gilbert R. G., Katz M. L. An Economist’s Guide to U.S. v. Microsoft. Journal of Economic Perspectives, 2001, vol.15, no 2, pp.25-44, Klein B. The Microsoft Case: What Can a Dominant Firm Do to Defend Its Market Position. Journal of Economic Perspectives, 2001, vol.15, no 2, pp.45-62; Whinston M. D. Exclusivity and Tying in U. S. v. Microsoft: What We Know and Don't Know. Journal of Economic Perspectives, 2001, vol.15, no.2, pp.63-80.

A significant role in the formation of opposing points of view was played by the traditional confrontation between the Chicago school of the theory of industrial markets and Harvard (For more on this, see Rozanov’s views on competition and the practice of antimonopoly regulation: the experience of countries with developed market economies. Economic Journal of the Russian State University for the Humanities, 2001, No. 2) or in this In this case, it would be better to say – the opposition of the Chicago school to everyone else. Recall that the hallmarks of the Chicago School theory of vertical contracting were the conclusions that (1) vertical contracting can be used to improve efficiency rather than to enhance and exploit market power; (2) vertical restrictive contracts cannot be used to enhance market power. While the first theses is shared by almost all economists, there is no such unanimity regarding the second.

Russian antimonopoly legislation has also borrowed from European legislation the regime for notifying agreements between market participants. Unfortunately, at the moment there is no systematic information about the practice of its use.

Joskow P. L. Transaction Cost Economics, Antitrust Rules and Remedies. The Journal of Law, Economics and Organization, 2002, vol.18, No. 1, pp.95-116.

The indemnity test assumes that a seller who is a potential predator, after a period of lower prices (and associated lower losses), should be able to raise the price in the future and thereby compensate for the losses incurred. In particular, a necessary condition for this case to meet the reimbursement test is high barriers to entry into the market.

Joskow, op. cit. pp.101-102.

Cabral L. Industry markets: an introductory course. Mn.: New knowledge, 2003, p.146.

Motta petition Policy. Theory and Practice. Cambridge University Press, 2004, pp.211-219 .

Moshko of coordinated actions of operators of the retail market of automobile fuel in St. Petersburg in 1999. Internet address: http://www. antimonopoly. *****/practice/practice4.shtml.

M., op. cit., p. 132-147.

At the same time, it should be noted that the criterion of the total market share of sellers is extremely sensitive to the identification of market boundaries. For example, when identifying a market with an industry, the minimum estimate of the share of markets in relation to which a conclusion can be made about collective dominance in the volume of industrial production for Russian industry is 10-15%. See, Shastitko antimonopoly policy in Russia: economic analysis of proposed changes to competition legislation. Questions of Economics, 2005, No. 5.

Such confusion can arise in competition policy when assessing market boundaries and is known as the “cellophane fallacy”. Market determination for antitrust regulation purposes is carried out using a test known as SSNIP (small but significant and non-transitory price increase) or the hypothetical monopolist test. As long as an increase in prices for goods leads to losses for a hypothetical monopolist, one should conclude that the product (group of goods) belongs to a wider market. However, for an actual monopolist, raising the price must result in a loss if we assume that he is profit maximizing. Therefore, applying this test to a monopolized market would result in the market boundaries being defined too broadly.

In addition to the approval regime, there is also a regime for notifying the antimonopoly authority about the transaction. In the latter case, if the antimonopoly authority discovers a negative impact of the transaction on competition, it issues an order on actions that should restore the conditions of competition. In the latter case, illegal behavior is a failure to comply with the instructions of the antimonopoly authority. In any case, market participants do not bear the cost of assessing the impact of the transaction on competition.

Industry of Russia. Statistical collection, M., State Committee of the Russian Federation on Statistics, 2000, pp. 346 and 352.

Ibid., p.20-27.

Joskow P. L. Op. cit.

The register was formed as a list of companies potentially occupying a dominant position (according to the 1991 Law “On Competition”, a company was classified as dominant if the antimonopoly authority could prove the fact of dominance). Under the new norm, it is the composition of the register that has an impact on the scope of law enforcement. Currently, according to expert estimates, the register is overloaded with companies that were not actually dominant. However, it should be noted that companies did not have significant incentives to seek exclusion from the register. Nowadays, as is easy to see, the situation has changed radically.

Calculated on the basis of: Industry of Russia-2005, M., Rosstat, tables 1.4 and 3.1.

Calculated based on: Industry of Russia-2005, tables 1.4 and 1.5.

Integration processes, corporate governance and management in Russian companies. Ed. , Series “Scientific reports of the Moscow Monograph”, report No. 000, M., 2006, p. 114.

Integration processes, corporate governance and management in Russian companies. Ed. , Series “Scientific reports of the Moscow Monograph”, report No. 000, M., 2006, p. 37.

Antimonopoly legislation

At the level of individual regions, antitrust laws appeared even earlier - in individual US states. Their approval was initiated by organizations such as the Missouri Farmers Alliance. They united producers concerned about increasing competition from larger, more efficient farms. The increase in the market share occupied by large farms was presented as a dangerous concentration leading to market monopolization. At the same time, market concentration was not accompanied by a reduction in production and rising prices, as the “monopolists” were accused of, but by directly opposite phenomena. Thus, wheat in 1889 cost 35% cheaper than ten years earlier, pork in 1889. fell in price by 19%, beef tenderloin - by 39%, livestock live weight fell in price by 28.8% over five years. The livestock population in the United States increased by approximately 50% during the 1880s.

The situation was similar at the federal level. Senator John Sherman, who brought about antitrust legislation in the United States, accused the trusts of restricting output to raise prices. As his correspondence with representatives of small oil companies shows, in reality Sherman defended the interests of those entrepreneurs who suffered from falling prices, in particular from the reduction in price of petroleum products caused by the use of tanks when transporting oil. In particular, he lobbied for legislation that would prohibit railroads from providing discounts for transporting oil in tanks rather than in barrels.

Among the industries considered monopolized by Congress were oil, sugar, rails, lead, zinc, jute, coal, and cottonseed oil. But in all of the listed industries for which relevant data is available, production between and. grew faster than American manufacturing as a whole. During this period, US GNP grew in real terms by 24%, and in nominal terms by 16%. As for output in the industries where trusts were formed, in nominal terms it grew by 62% during this time, and in real terms by 175%. Thus, the trusts ensured an increase in production and a reduction in prices.

Table. Growth in output in certain US industries in - gg.

Table. Price increases in certain US industries in - years.

(Source: Thomas DiLorenzo The Origins of Antitrust Rhetoric vs. Reality" Regulation, Volume 13, Number 3, Fall 1990)

Since the passage of the Sherman Act, antitrust laws have spread to most countries around the world. This process was not overnight: for example, in Italy the corresponding law was adopted 100 years after the Sherman Act - in 1990.

Table. Countries without antitrust laws

Antimonopoly legislation in Russia

The basis of Russian antimonopoly legislation is the Federal Law (Russia) “On the Protection of Competition”. The law contains restrictions on freedom of entrepreneurial activity and freedom of contract for business entities that occupy a dominant position. The presence of the latter is established on the basis of determining the company's share in total sales on the market or determining the total share occupied in the market by several largest (in terms of sales volume) companies.

Such entities, with certain exceptions, are prohibited from:

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) 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;

5) economically or technologically unjustified refusal or avoidance of concluding a contract with individual buyers (customers) if it is possible to produce or supply the relevant product;

6) economically, technologically and otherwise unjustified establishment of different prices (tariffs) 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.

Along with this, the federal law “On the Protection of Competition” introduces control over mergers of organizations, the sale and purchase of large blocks of shares in companies, as well as a ban on agreeing prices between business entities, market division and some other practices.

Control over economic concentration

Control over economic concentration consists of the control of antimonopoly authorities over the acquisition of assets by economically significant companies. Such control in one form or another exists in most countries with antitrust laws. In particular, of the 80 countries surveyed by the US Department of Justice that have antitrust laws, about 60 implement merger control. However, the details of the control regime may differ depending on the country and type of transaction.

Control can be preliminary (companies submit information about transactions to the antimonopoly authorities before the completion of these transactions) or subsequent (after the transactions are completed). In addition, filing a notification may be mandatory or voluntary. Thus, in Australia, which does not have a mandatory notification procedure, a company may nevertheless choose to obtain immunity from possible prosecution and pre-apply for formal approval.

Table. Merger control procedures around the world

• - depending on the specifics of the transactions

(Source: US Department of Justice, 2000).

Criticism of antitrust laws

According to the heads of the FAS I. Artemyev and A. Sushkevich, “the state’s antimonopoly policy, like no other form of public government intervention in private affairs, is under constant fire from representatives of economic science.” Critics of antitrust legislation are such famous economists, lawyers and philosophers as M. Friedman, F. Hayek, A. Greenspan, A. Rand, R. Coase, R. Bork, R. Posner, M. Rothbard. The main objects of criticism are:

• the economic consequences of antitrust regulation (it is argued that it always or often leads to a decrease in social welfare); and
• The underlying ethical and legal philosophy of antitrust regulation (it is argued that it violates property rights and freedom of contract and leads to inequality of citizens' rights).

Some of the critics of antimonopoly legislation are supporters of its abolition, some are supporters of significant adjustments.

Notable antitrust critics

Ethical and legal criticism of antimonopoly legislation

Wikimedia Foundation.

2010.

Illegal behavior is those human actions that result in a crime being committed. In this case, a certain condition must be met. Namely: a person is not only fully aware of his actions, but is also able to direct them.

Illegal behavior is not only any illegal action, but also inaction. It represents the absence of any movement that should have been performed.

In the criminal legal sense, illegal behavior is a crime. The fact is that both of these concepts (illegal behavior and crime) imply similar phenomena of social life.

Features

In any society, offenses are a punishable socially dangerous phenomenon. After all, illegal activities harm the interests of not only the state, but also its citizens. How to determine the legality of a person’s action? For this purpose, there are signs of illegal behavior. Among them:
1. Illegal actions. These include those actions that contradict the boundaries of behavior specified in the norm.
2. Illegal inactions. This is passivity and failure to fulfill official duties (the guard sleeps at his post, etc.).
3. Violation of the law containing legal prohibitions and obligations.
5. The presence of guilt as a subjective moment of the act. This is intent or negligence, showing a person’s psychological attitude towards his illegal behavior.
6. Presence of a causal relationship. This sign indicates that the onset of harm became possible only after the crime was committed.

Classification of illegal behavior

Depending on the area of ​​public life in which the unlawful act was committed, crimes are distinguished:
- in economics;
- in management activities;
- in the family and household area.

In addition, illegal behavior may be:
- aimed at achieving a specific goal;
- not setting itself any specific task.

Violation of a rule of law can have varying degrees, and it is recognized as either a crime or a misdemeanor. The classification of the committed act as one or another type of offense depends on how much harm the person’s illegal behavior caused.

Objects of a criminal act

Illegal behavior can be aimed at weakening the state and social system, the existing economic system, and various forms of ownership. The rights of citizens, including property, personal, labor, political, etc., can also become the object of illegal behavior.

Commission of crime

When characterizing illegal behavior, first of all, its social danger is considered. In this case, the crimes committed are classified as having small or medium severity, grave or especially grave.

The basic rules of law adopted in our country for such illegal actions provide for the use of the most stringent measures of state coercion. The entire list of such punishments is contained in the Criminal Code of Russia. However, this list is closed. Any changes to the list of such measures can only be made by clarifying and supplementing the Criminal Code itself.

Only a court has the right to find a person guilty of a crime. This body also imposes punishment corresponding to illegal behavior. In this case, the judge is guided by the Criminal Code, which contains a complete list of all criminal acts. The list is considered exhaustive and is not subject to any broad interpretation.

Administrative offenses

All those actions that are illegal, but not covered by the Criminal Code, are misdemeanors. They are not recognized as socially dangerous, although they cause some harm.

One type of such offenses is administrative. They are expressed in the action or passivity of a legal or natural person. At the same time, the legislation provides for administrative liability for this offense.
Such acts damage state and public order, property, the environment, the rights and freedoms of citizens, as well as established norms and rules of governance. There are many examples of such illegal behavior. This includes violation of transport regulations, late submission of a tax return, etc.

Established by legislative acts of the Russian Federation and the federal code “On Administrative Offences”. In some cases, such acts are considered by courts or arbitration courts, or general jurisdiction. However, in general, decisions on administrative offenses are made by specially authorized bodies or their representatives, which include fire control, customs and many others.

Disciplinary offense

We can talk about such illegal behavior in the case when an employee improperly fulfills his official, labor or military duties provided for by the employer and the internal regulations of the enterprise.

A disciplinary offense as illegal behavior is absenteeism or being late for work, violation of labor protection requirements, etc. Unlike crimes, this type of act does not have an exhaustive list. Also, none of the legislative acts contains the definition of the term “disciplinary offense”.
As punishment for lateness or poor quality work, the administration of the enterprise may impose on its employee one of the penalties provided for by the Labor Code of the Russian Federation or local acts of the organization.

Civil misdemeanor

This is a special type of illegal act. It is considered by the Civil Code. Obligations contained in a contract and not fulfilled by one of the signatories are considered a tort. This is a civil misdemeanor. The list of such actions also includes an illegal decision to conclude a transaction, violation of the rights of the owner, and much more. An exhaustive list of such offenses relating to both individuals and legal entities is not defined by law.

What sanctions apply for such offenses? This includes compensation for material as well as moral damage, restoration of all violated rights, fulfillment of contractual obligations, forced collection of debts, etc.

There is a basic rule according to which persons who fail to fulfill or improperly fulfill previously accepted agreements bear responsibility for civil offenses. However, each rule has its exceptions provided by law. The same is true in cases of civil misdemeanors. For example, compensation for harm is made by the owner of the source of danger, regardless of the fault of the cause of the damage. Such a person can be completely released from liability if he can prove that his behavior was the result of force majeure and had no intent.

Material offenses

Such offenses include those cases when employees or workers caused damage to their organization, enterprise or institution. In this situation, legal-restorative sanctions are applied to them. This includes deduction of part of wages, reimbursement of the cost of damaged items, etc.

Procedural violations

Such offenses include, for example, failure to appear in court, for questioning by an investigator, refusal to voluntarily release material evidence, etc. As sanctions, forced transfer to the relevant body or to a certain official is applied.

Why do people break the law?

Society takes various measures to ensure that citizens behave within the framework established by accepted norms and rules. However, despite this, a large number of people still commit illegal acts. Why do they do this?

Various social processes play a significant role in the formation of illegal behavior. These include imperfect legislation and weak government, low living standards and social cataclysms.

The motivation for some people to commit illegal actions is the desire to achieve success at any cost and receive a large income. Moreover, if a person does not have the opportunity to freely use public goods, then it is simply impossible to legally achieve this goal.

One of the social reasons for illegal behavior may be people's tendency to label people. In some cases, a person commits a crime again and again due to the principle of a vicious circle. The initial illegal act was committed by him accidentally. Further punishment followed.

Then the person acquired a history of violent relationships in prison. After his release, he has difficulties with social adaptation. A person is labeled a criminal, which, combined with the difficulties that arise in life, pushes him to commit a more serious illegal act.
The formation of antisocial behavior is also influenced by the conditions that are created in dysfunctional families.

Legal education and assistance

Since 1974, Channel One of Russian television has broadcast the socio-political program “Man and the Law.” Since 1996, its permanent presenter is a journalist. The program raises topics of the fight against crime and corruption, and tells criminal stories. Politicians and journalists, representatives of law enforcement agencies and security forces are invited to the studio.

On the basis of this popular television project, a legal center of the same name was created and is successfully operating. Human Rights Center “Man and the Law” provides highly qualified legal assistance and defends the rights of its clients. Today, here you can get timely and competent support with correctly drawn up legal documentation. The center’s specialists help their clients prevent a large number of negative consequences and avoid many risks and conflicts. Anyone who needs legal services of the highest quality, experienced lawyers in civil and criminal cases, turns to the Human Rights Center “Man and the Law”. Qualified specialists solve customer problems in a short time and with maximum efficiency.

Concluding an agreement with a construction organization for the renovation of a computer room in the regional administration building;

Conclusion of an agreement on the redistribution of certain powers of the regional administration and city administration;

Speech by the head of administration at a ceremonial meeting dedicated to the opening of a new sports complex?

2. Student Korolev, revealing the classification of forms of activity of the executive branch according to the nature of the legal consequences caused, said that they are legal and non-legal, and immediately gave examples:

Regulatory acts: decrees of the President of the Russian Federation; orders of heads of executive authorities; instructions from heads of local administrations;

Individual acts: registration; decisions on the imposition of administrative and disciplinary sanctions; order on the appointment of a civil servant;

Mixed acts (legally significant actions): preparation of a normative act for publication; meeting; issuance of a document on education;

Organizational actions: instructing the inspection team; registration of permits for the inspected object; order of removal from office;

Logistical actions: registration of facts of absenteeism; development of recommendations for the implementation of control activities; conclusion of employment contracts.

Do you agree?

3. Is it true that draft acts of the Government of the Russian Federation are submitted to the Government of Russia by the Ministry of Justice of the Russian Federation, signed by the Chairman of the Government or his deputies, must be published in the Rossiyskaya Gazeta, Collection of Legislation of the Russian Federation and come into force immediately; acts containing information that is a state or other secret protected by law must undergo state registration with the Ministry of Internal Affairs of the Russian Federation?

4. In 2001, the Pension Fund of the Russian Federation issued instructions on the procedure for making payments to this fund. This garment factory did not comply with the instructions, and the pension fund applied sanctions to her. The factory appealed the decision to the court, pointing out that, contrary to the Decree of the President of the Russian Federation of May 23, 1996, the instruction was not registered with the Ministry of Justice of the Russian Federation and was not published in Rossiyskaya Gazeta, and therefore it has no legal force. The Foundation, in response to this argument, argued that it is not an executive body and the aforementioned Decree of the President of the Russian Federation of May 23, 1996 does not apply to it. Who is right?

5. Determine from what moment the order of the Ministry of Health and Social Development of the Russian Federation “On the Certification Commission of the Ministry of Health and Social Development of the Russian Federation” dated May 28, 2009 No. 281n came into force, if the specified order was registered with the Ministry of Justice of the Russian Federation on June 30, 2009 . and published in the “Bulletin of regulatory acts of federal executive authorities” No. 30 dated July 27, 2009.

6. On September 14, 2008, the governor of one of the regions of the Russian Federation signed a decree “On measures to ensure food security of the region,” which introduced control over the movement of agricultural products, raw materials and food within the region and beyond, and also assigned responsibility to the relevant authorities executive power of the region to issue documents for the right to move agricultural products outside the region. The prosecutor of this region lodged a protest against this resolution of the regional administration, since it contradicts federal law.

What is the procedure for ensuring the legality of the regional administration's resolution? Could it be:

a) canceled by the regional prosecutor;

b) declared inactive by the regional court;

c) canceled by the head of the administration;

d) declared inactive and having lost legal force by another government body?

7. Which of the following acts are legal acts of public administration? Which of them are subject to mandatory registration with the Ministry of Justice?

Order of the mayor of the city “On replacing old-style travel tickets” by the 1st day of the next month.

Order of the regional governor “On the appointment of the regional minister of finance.”

Letter from the Minister of Education and Science of the Russian Federation “On the cancellation of licenses for the right to conduct educational activities.”

Resolution of the Magistrate's Court imposing an administrative fine.

The audit report drawn up by the inspector of the branch of the Pension Fund of the Russian Federation.

order of the Ministry of Agriculture of Russia “On approval of taxes for calculating the amount of recovery for damage caused by legal entities and individuals by illegal acquisition or destruction of wildlife objects classified as hunting objects”;

Order of the Russian Forestry Agency “On approval of the Regulations on the badge for long-term and impeccable service in the state forest protection of the Russian Federation.”

order of the Federal Customs Service of Russia “On approval of the Regulations on the procedure for certification of employees of customs authorities of the Russian Federation”;

order of the Ministry of Natural Resources and Ecology of the Russian Federation “On the duration of annual vacations for employees... of Ministry of Natural Resources”;

Order of the Minister of Defense of the Russian Federation “On the establishment of a monthly allowance for the importance of the tasks performed by certain categories of military personnel.”

8. Give a comparative description of the following legal acts.

9. One of the main directions of administrative reform carried out in the modern Russian state is the development and implementation of administrative regulations in the activities of state bodies in order to improve the administrative regulation of the performance of state functions.

As practice shows, in connection with the development of information systems in Russia, there is an active introduction of information and communication technologies into the public administration system and the daily activities of government bodies. Many researchers advocate the need for active implementation and use of electronic administrative regulations, according to which officials will interact with each other and with citizens in the virtual space.

Give examples of electronic administrative regulations. What are the prospects for the formation of an institute of electronic administrative regulations in Russia?

a) a citizen’s appeal must be registered on the day it is received;

b) a written response should be provided only to written requests;

c) appeals can be in the form of a proposal, statement, petition, complaint, collective appeal, petition;

d) appeals drawn up in any form (not according to the proposed samples) are not subject to consideration;

e) the appeal must be considered within 10 days, which, if additional verification is necessary, may be extended by another 10 days;

f) the citizen who filed the appeal must facilitate its consideration, namely: provide the required information, documents and materials; carry out courier functions (in case of special need); pay established fees for obtaining information upon request by the body (official) authorizing the appeal;

g) repeated appeals in the absence of new facts are not considered;

h) the decision on the appeal can only be appealed in court.

Conduct a legal analysis of the above provisions of this law, confirming your conclusions with current legal norms. How can you “correct” the law of a subject of the Russian Federation? What could you do in this case?

11. Determine the features of handling special complaints. Based on specific legal acts, create a table showing the differences between the procedure for resolving general and special complaints:

12. File an administrative complaint against the unlawful actions of a traffic police inspector against the driver of a personal vehicle for non-compliance with the Traffic Rules.

13. File a legal complaint against the unlawful actions of a tax inspector for allegedly evading filing an income tax return.

14. At a trolleybus stop, two unknown people snatched citizen Kodova’s bag and fled in a car. Kodova contacted the nearest police department with a report of robbery. The police officer on duty refused to accept the application, citing the fact that it was impossible to solve the crime: there were no witnesses, the Code of the criminals did not remember, etc. Kodova’s friend, having learned about the incident, wrote a complaint against the police department officers and filed it with the court and the police department.

Analyze the situation.

15. In a practical lesson devoted to the problem of an administrative legal contract, student Ivanov noted that the importance of an administrative contract is decreasing in connection with the reform of modern Russian administrative law, as well as in connection with the strengthening of the legal foundations of public administration (state administration and local self-government), i.e. e. management activities are characterized to a greater extent by relations of power and subordination. Therefore, in the future, according to Ivanov, it is hardly possible to use administrative contracts in administrative practice.

What is your opinion on the issue under consideration?

Test:

1. Which of the listed forms of management activity are legal forms of activity of the executive power:

A - imposition of an administrative fine

B - issuance of a medical certificate

B - meeting of regional police chiefs

G - registration of a political party with the justice authorities

D - issuance of an order by the plant director

2. Which of the following actions of the Ministry of Finance of the Russian Federation can be classified as legal administrative forms?

A - submission to the Government of the Russian Federation of a draft federal law on the federal budget for the next year;

B - publication in the media of information about the additional issue of federal loan bonds;

B - approval of the accounting regulations;

D - request for information from the Federal Tax Service of the Russian Federation on the collection of tax payments for the past month;

D - participation of the delegation of the Ministry of Finance of the Russian Federation headed by the minister in the international economic forum in Davos (Switzerland);

E - cancellation of the auditor's qualification certificate;

3. Indicate which of the following features characterize legal acts of management:

A - are published on behalf of the state (municipalities) and ensure the execution of tasks of a public nature;

B - are published on the basis and in pursuance of the legislation of the Russian Federation, as well as other regulatory legal acts that have greater legal force;

B - are exclusively jurisdictional in nature, i.e. aimed at resolving disputes arising in the field of public administration;

G - are always expressed in the form of a written document that has all the necessary details;

E - establish, change, cancel legal norms or specific legal relations.

4. Determine which of the following documents and actions relate to legal acts of management:

A - protocol on the case of an administrative offense;

B - register of positions in the federal civil service;

B - order of the Ministry of Communications of the Russian Federation on approval of requirements for networks and means of postal communication;

D - Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5 “On some issues that arise for courts when applying the Code of the Russian Federation on Administrative Offenses”;

D - resolution imposing an administrative penalty;

E - announcement of a disciplinary sanction to a serviceman;

F - certificate of entry into the unified state register of legal entities;

Z - signal from the traffic controller to stop the vehicle;

I - service contract with a state civil servant;

K - notarization of a copy of a diploma of higher education.

5. Which of the following applies to administrative (law enforcement) acts:

A – tax payment verification report

B – Decree of the President of the Russian Federation “On awarding the honorary title “Honored Lawyer of the Russian Federation” to an investigator of the Penza Prosecutor’s Office”

B – order of the minister on the appointment of an employee to the position

G – job description

6. Of the listed types of acts, the Government of the Russian Federation has the right to issue:

A - decrees;

B - regulations;

B - orders

Federal statebudgetary

For a legal relationship to arise, certain material and legal prerequisites must be present.

Material prerequisites - these are the vital interests and needs of people. Under their influence, people enter into relationships with each other. In other words, this is a set of socio-economic, cultural and other circumstances that require legal regulation.

Legal Prerequisites consist of three components: rules of law; legal personality; legal fact.

Legal fact- this is a certain life circumstance with which the rule of law connects the emergence, change or termination of a legal relationship.

Concept and classification of legal facts

Legal facts - These are specific life circumstances that are associated with the occurrence of certain legal consequences.

Signs of a legal fact:

• a specific life circumstance expressed externally and actually existing for a certain period of time;
• a circumstance provided for by a rule of law that predetermines its legal properties;
• a fact containing information about a certain state of a type of social relationship (presence of property, offense, etc.);
• the presence of these circumstances causing certain legal consequences.

Legal facts are prerequisites for legal relations. Their model is captured in the hypothesis of legal norms. They play an important role in the legal system, as they connect the rules of law with real social relations. It should be borne in mind that the connection between the legal facts expressed in the hypothesis of the norm and the rights and obligations enshrined in its disposition is not causal, since it is established by the law-making body.

Even before contact with a real life situation, legal facts organize and preliminarily influence people’s behavior, ensuring the transition of an abstract model into the concrete behavior of real subjects. A certain set of legal facts carries out a kind of sub-normative individual regulation. In the presence of these facts, the disposition and sanction of the legal norm are “triggered.” This is a special mechanism that triggers its action, a kind of “trigger”, the moment of transition of law from a state of relative rest to movement in relation to a real life situation, to the realization of the social demand for the potential that is inherent in it.

Specific legal facts, together with legal norms, determine the content of the rights and obligations of participants in legal relations. It should be borne in mind that quite often, for the emergence or termination of a legal relationship, not one, but several legal facts are required, the necessary set of which is called the legal (actual) composition (for example, for the emergence of a pension legal relationship, it is necessary not only to reach a certain age, but also to have the appropriate length of service, as well as the decision of the social security authorities on the assignment of a pension).

Types of legal facts

The variety of legal facts is usually classified on the following grounds:

1. according to the nature of the upcoming consequences - law-forming, law-changing, law-terminating And complex (universal) facts (enrollment in a university, court verdict, marriage, etc.) that simultaneously form, change, and terminate legal relations;

Law-forming facts give rise to legal relations (for example, hiring).

Legally terminating - terminate legal relations (for example, graduation from a university).

Law-altering legal facts - change legal relations (for example, exchange of living space).

2. on the basis of volition, legal facts - events and actions.

Events - These are circumstances that objectively do not depend on the will and consciousness of people (natural disasters). They can be unique and periodic, instantaneous and long-lasting, absolute (completely independent of the will of people) and relative (caused by the activities of people, but in a given legal relationship independent of the causes that gave rise to them).

Actions - These are facts that depend on the will of people, since they are committed by them. Actions are divided into legitimate(standards that comply with the regulations) and illegal(violating legal regulations).

Some scientists, along with events and actions, highlight legal states(state of relationship, state of disability, state of marriage, etc.).

Legal, in turn, are divided into legal acts(facts that are specifically aimed at achieving legal consequences - court verdict) and legal actions(facts that are not specifically aimed at achieving legal consequences, but nevertheless cause them - the artist painted the picture).

Unlawful actions are divided into crimes and misdemeanors. The latter are divided into administrative, civil, material, disciplinary, procedural, etc.;

Unlawful actions (offenses) are divided into misdemeanors and crimes. Lawful - on legal acts and actions.

Legal acts represent actions aimed at achieving a certain legal result. These could be transactions, statements, voting, etc.

Legal actions - These are actions of persons, the commission of which is associated by law with the onset of legal consequences, regardless of the will, desire and intentions of these persons. Typical examples are the creation of a work of art, the discovery of an object, or a treasure.

3. can be distinguished by duration of action short-term(fine) and lasting legal facts. Lasting facts are called legal states (state of kinship, citizenship, etc.);

4. distinguished by quantitative composition simple And complex legal facts.

Often, for the legal consequences provided for by a legal norm to arise, not one, but several legal facts are necessary. Their totality is called legal composition. Thus, for a pension legal relationship to arise, the following legal facts are necessary: ​​reaching a certain age; seniority; decision of the competent authority to grant a pension.

Differentiate actual compositions completed(when there is the necessary set of legal facts) and unfinished(when the accumulation of necessary facts is still ongoing), simple(when all the facts relate to one branch of law) and complex(when the required set of facts includes facts from different industries. Moreover, their accumulation takes place in a certain sequence).

5. Legal facts can be positive or negative in meaning.

Positive legal facts are life circumstances, the presence of which causes, changes or terminates legal relations (for example, reaching a certain age).

Negative legal facts, on the contrary, represent such life circumstances, the absence of which is a condition for the emergence, change or termination of legal relations (for example, the absence of close kinship and an already registered marriage is a necessary condition for marriage).