Commercial law. Monopolistic activity and its types (lecture notes)

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Commercial law. Monopolistic activity and its types (lecture notes)

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LECTURE No. 39. Monopolistic activity and its types

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

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

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

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

3) the aggregate share of not more than three economic entities, the share of each of which is greater than the shares of other economic entities in the relevant commodity market, exceeds 50%, or the aggregate share of not more than five economic entities, the share of each of which is greater than the shares of other economic entities in the relevant commodity market; product market, exceeds 70% (Part 3, Article 5 of the Federal Law "On Protection of Competition") (this provision does not apply if the share of at least one of these economic entities is less than 8%);

4) for a long period of time, the relative size of the shares of economic entities is unchanged or subject to minor changes, and access to the relevant product market for new competitors is difficult;

5) a product sold or purchased by economic entities cannot be replaced by another product when consumed, an increase in the price of a product does not cause a decrease in demand for this product corresponding to such an increase, information on the price, on the conditions for the sale or purchase of this product on the relevant product market is available to an indefinite circle of persons (Part 3, Article 5 of the Federal Law "On Protection of Competition").

The position of an economic entity whose share in the market of a certain product does not exceed 35% cannot be recognized as dominant.

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

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

1) establishment, maintenance of a monopoly high or monopolistically low price of goods;

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

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

4) economically or technologically unjustified reduction or termination of production of goods, if there is a demand for this product or orders for its supply are placed if it is possible to produce it profitably, and also if such reduction or termination of production of goods is not directly provided for by federal laws, regulatory legal acts the President of the Russian Federation, the Government of the Russian Federation, authorized federal executive bodies or judicial acts;

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

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

7) establishment of an unreasonably high or unreasonably low price of a financial service by a financial institution;

8) creation of discriminatory conditions;

9) creation of obstacles to access to the commodity market or exit from the commodity market to other economic entities;

10) violation of the pricing procedure established by regulatory legal acts.

According to their types, monopolistic activity is divided into:

1) individual;

2) collective;

3) contractual;

4) non-contractual.

Individual monopolistic activity is manifested in the abuse of a dominant position in the market of a certain type of goods. Collective monopolistic activity is manifested in the conclusion of agreements. Agreement - an agreement in writing contained in a document or several documents, as well as an agreement in oral form. Agreements allowed:

1) in writing, if these agreements are commercial concession agreements;

2) between economic entities, the share of each of which in any commodity market does not exceed 20%.

The Federal Law "On Protection of Competition" allows actions, omissions, agreements, concerted actions, transactions, if they do not create an opportunity for individuals to eliminate competition in the relevant product market, do not impose restrictions on their participants or third parties that do not correspond to the achievement of the goals of such actions (inaction), agreements and concerted actions, transactions, other actions, as well as if their result is or may be:

1) improving the production, sale of goods or stimulating technical, economic progress or increasing the competitiveness of Russian-made goods in the world commodity market;

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

Agreements between federal executive authorities, public authorities of the constituent entities of the Russian Federation, local self-government bodies, other bodies and organizations exercising the functions of these bodies, as well as state non-budgetary funds, the Central Bank of the Russian Federation or between them and business entities, or the implementation by these bodies and organizations of agreed actions, if such an agreement or such implementation of concerted actions lead or may lead to the prevention, restriction, elimination of competition, in particular, to:

1) increase, decrease or maintenance of prices (tariffs), unless such agreements are provided for by federal laws and regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation;

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

3) dividing the commodity market according to the territorial principle, the volume of sale and purchase of goods, the range of goods sold, or the composition of sellers or buyers;

4) restriction of access to the commodity market, exit from the commodity market or elimination of economic entities from it.

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