The concept of monopolistic activity in the commodity market. monopoly activity. The purpose of antitrust law is to regulate industry structure by expressly prohibiting the merger of companies that dominate the market.

06.03.2023

business law monopoly state

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

Main legal acts regulating monopoly activity:

1. The Constitution of the Russian Federation (Article 34).

2. Civil Code of the Russian Federation (Part One) dated November 30, 1994 No. 51-FZ (Article 10).

3. Federal Law No. 135-FZ of July 26, 2006 “On Protection of Competition”.

4. Federal Law No. 147-FZ of August 17, 1995 “On Natural Monopolies”.

The essence and content of a monopoly position is revealed through the category of the dominant position of a business entity in the market. According to Art. 5 of the Federal Law "On Protection of Competition", the dominant position is recognized as the position of an economic entity (group of persons) or several economic entities (groups of persons) in the market for a certain product, which gives such an economic entity (group of persons) or such economic entities (groups of persons) the opportunity to exercise decisive influence on the general conditions for the circulation of goods on the relevant commodity market, and (or) to eliminate other economic entities from this commodity market, and (or) to impede access to this commodity market for other economic entities. On Protection of Competition: Federal Law No. 135-FZ of July 26, 2006 (as amended on December 28, 2013) // Collected Legislation of the Russian Federation of July 31, 2006. - No. 31 (1 hour). - Art. 3434.

The position of an economic entity is recognized as dominant (with the exception of a financial organization):

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

The share of which 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 based on the economic entity's share in the commodity market that is unchanged or subject to minor changes, the relative size of shares in this commodity market owned by competitors, the possibility of access to this product market of new competitors or on the basis of other criteria characterizing the product market.

The position of each economic entity from several economic entities (with the exception of a financial organization) is also recognized as dominant, in relation to which the following conditions are met in aggregate:

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

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

A product sold or purchased by economic entities cannot be replaced by another product when consumed (including when consumed for production purposes), an increase in the price of a product does not cause a 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 in the relevant product market is available to an indefinite circle of persons.

The dominant position is also recognized as the position of an economic entity - a subject of natural monopoly in the commodity market, which is in a state of natural monopoly.

Federal laws may establish cases of recognizing the dominant position of an economic entity whose share on the market of a certain product is less than 35%.

The conditions for recognizing the dominant position of a financial organization (with the exception of a credit organization) are established by the Government of the Russian Federation. The conditions for recognizing the dominant position of a credit institution, subject to the restrictions provided for by this Federal Law, shall be established by the Government of the Russian Federation in agreement with the Central Bank of the Russian Federation.

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 cost-effectively, 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.

Thus, the list of types of monopolistic activities is not exhaustive and may include any actions recognized as monopolistic in accordance with federal laws.

There are the following main types of monopolies.

1. Monopolies created as a result of the direct regulatory influence of the state, which are created at the will of the state in order to ensure state and public interests. They are protected from competition from economic entities that are not subjects of these monopolies.

There are the following types of monopolies of the type under consideration: state monopolies; natural monopolies.

The state is understood as a monopoly created in accordance with the legislation of the Russian Federation, which determines the commodity boundaries of the monopoly market, the subject of the monopoly (monopolist), the forms of control and regulation of its activities, as well as the competence of the regulatory body.

State monopolies are created in order to protect the economic interests of the state and consumers, strengthen security, foreign trade, military-political positions of the state, etc. These monopolies are established in an imperative manner on the basis of legislative norms and are aimed mainly at ensuring public law interests.

The implementation of the state monopoly is regulated by federal regulations.

Natural monopoly is a state of the commodity market, in which the satisfaction of demand in this market is more efficient in the absence of competition due to the technological features of production (due to a significant decrease in production costs per unit of goods as the volume of production increases), and the goods produced by subjects of natural monopoly do not can be replaced in consumption by other goods, in connection with which the demand in this commodity market for goods produced by subjects of natural monopolies depends to a lesser extent on changes in the price of this product than the demand for other types of goods (Article 3 of the Federal Law “On natural monopolies). On natural monopolies: Federal Law No. 147-FZ of August 17, 1995 (as amended on December 30, 2012) // Collected Legislation of the Russian Federation of August 21, 1995. - No. 34. - Art. 3426.

The list of areas of activity in which the regime of natural monopoly is introduced is contained in Art. 4 of the Federal Law "On natural monopolies":

Transportation of oil and oil products through main pipelines;

Rail transportation;

Services of transport terminals, ports, airports;

Public telecommunication and public postal services;

Electricity transmission services;

Services for operational dispatch control in the electric power industry;

Heat transfer services;

Services for operational dispatch control in the electric power industry

Services for the use of inland waterway infrastructure.

In these areas of entrepreneurial activity, the state introduces a special legal regime for regulating and controlling the activities of subjects of natural monopolies. The regulatory bodies of natural monopolies may apply the following methods of regulating the activities of subjects of natural monopolies:

a) price regulation, carried out by determining (setting) prices (tariffs) or their limit level;

b) determination of consumers subject to mandatory service, and (or) establishment of a minimum level of their provision in case of impossibility to fully meet the needs for goods produced (sold) by a natural monopoly subject, taking into account the need to protect the rights and legitimate interests of citizens, to ensure the security of the state , protection of nature and cultural values (Article 6 of the Federal Law "On natural monopolies").

2. Monopolies formed as a result of independent actions of business entities without direct regulatory influence of the state may appear in connection with the victory in fair competition over a certain business entity and the exit of other competitors from the market, through concentration of capital and association of business entities, underdevelopment of the market, etc. . In this situation, the business entity for a certain time becomes the only producer (seller) of a certain product. At the same time, there are no legal restrictions on competition; other entities have the right to carry out similar business activities in this market and compete with each other.

3. Monopolies arising from the possession of exclusive rights may also arise from the possession (use) by a business entity of exclusive rights to the results of intellectual activity and equated means of individualization of the entrepreneur, products (works, services). These are the rights to inventions, utility models, industrial designs, trademarks, service marks, appellations of origin, trade names, etc. (Clause 1, Article 138 of the Civil Code of the Russian Federation).

A business entity may occupy a monopoly position in the market for the use of these objects, based on the very fact of legal recognition of the status of their owner (for example, owners of patents for inventions, industrial designs or trademark registration certificates). The possession of rights to such objects puts the business entity in a position in which the use of these objects depends entirely on its discretion.

The possibility of occupying a monopoly (dominant) position in the market due to the possession of these rights is associated, first of all, with the monopoly nature of these rights themselves for these intangible benefits (objects of industrial property rights). The owner has the ability to monopolize the object, both using it in his activities and not doing it (which is the positive side of the law), as well as to prohibit all other persons from using it without a specially issued permit or license (the negative side of the law). The right holder's ability to exclude all other persons from using industrial property objects gives entrepreneurs real competitive advantages and a real opportunity to occupy a monopoly (dominant) position in the market.

According to its 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.

Monopoly is an exclusive position of an economic entity arising from the right of ownership or from the possession of political power, which makes it possible to dictate its will to all other entities, regulate the production of this type of product and establish dominance in the market. A monopoly can be the state, regions, central economic departments, ministries, of course, state and private enterprises, as well as individual entrepreneurs.

Usually, monopoly is associated with large and largest enterprises or corporations, which is a mistake, because it is not due to the scale of the manufacturer's activities, the size of its assets, but to market shares. Even small and medium-sized enterprises can be monopolists, and a large corporation may not have a monopoly position. In our country, monopolism has a fundamentally different origin than in the West. Within the framework of the command-administrative system, it was based on state ownership and the total nationalization of the economy, planted from above, and did not grow out of competition.

Monopoly in practice implements the activities of economic entities that abuse their dominant position, which are aimed at preventing, restricting or eliminating competition. It includes:

1. Significant restriction of competition by commercial structures and (or) infringement of the interests of other business entities or citizens by:
- withdrawal of goods from circulation in order to create or maintain a shortage in the market or increase prices;
- imposing on the counterparty the terms of the contract that are not beneficial for him, or not related to the subject of the contract, or unnecessary goods and services;
- putting forward discriminatory conditions that put the counterparty in an unequal position compared to other business entities;
- creation of obstacles to access to the market (exit from the market) to other economic entities;
- violations of legally defined pricing rules, appointment, maintenance of a monopoly high or monopoly low price of goods;
- economically or technologically unjustified reduction or termination of production of goods, refusal or evasion from concluding an agreement with individual buyers, if there is a demand for this product or orders for its supply are placed if there is a possibility of its profitable production; establishing different prices (tariffs) for the same product (price discrimination);
- establishment by a financial organization of an unreasonably high or unreasonably low price of a financial service;
- agreements between economic entities in the commodity market, if they lead to the establishment or maintenance of prices (including at auction), its division according to one or another principle, etc.
2. Intervention or concerted actions of state authorities, administration, etc. in the economic activities of entities in order to limit or eliminate competition:
- imposition of restrictions on the creation of enterprises and firms, the establishment of prohibitions (restrictions), unreasonable obstruction of their implementation of certain types of activities or the production of certain goods;
- establishment of prohibitions or restrictions on the sale, purchase, other acquisition, exchange of goods, their free movement in the country, in the choice of suppliers;
- giving instructions to economic entities on priority deliveries of goods for a certain category of buyers (customers) or on the conclusion of contracts on a priority basis;
- economically, technologically and other unreasonable determination, increase, decrease or maintenance of prices (tariffs);
- division of the commodity market according to the territorial principle, the volume of sale or purchase of goods, their assortment, the composition of sellers or buyers (customers);
- restriction of access to the market, exit from it or elimination of economic entities, etc.

The following are considered signs of restriction of competition:

reduction in the commodity market of the number of economic entities that are not included in one group;
an increase or decrease in the price of a commodity that is not related to corresponding changes in general market conditions;
the refusal of economic entities that are not included in one group from independent actions in the market;
determination of the general conditions for the circulation of goods on the market by agreement between economic entities or in accordance with instructions from outside that are binding on them, etc.

The safest from the point of view of monopolization, according to Western experts, is the situation when 10 or more firms operate on the market. At the same time, the largest of them is not entitled to hold in their hands more than 31% of the total sales, two - no more than 44, three - 54, four - 64%.

In addition to the limitation, we can talk about unfair competition, which is understood as any actions of economic entities (groups of persons) aimed at obtaining advantages in the implementation of entrepreneurial activities that are contrary to the law, business customs, the requirements of integrity, reasonableness and fairness and cause (could cause) losses to competitors or damage to their business reputation.

The range of activities that can be called dishonest is very wide. These include:

dissemination of false, inaccurate or distorted information that may cause loss to a competitor or damage to its business reputation;
misrepresentation in relation to the nature, method and place of production, consumer properties, quality and quantity of goods, its producers;
incorrect comparison when advertising by an economic entity of goods produced or sold by it with goods produced by competitors;
sale, exchange of goods, if the results of intellectual activity and equivalent means of individualization of a legal entity, products, works, services were illegally used;
counterfeiting someone else's goods and trademarks, advertising or other aspects of a competitor's business;
boycott, i.e. isolation of the economic entity from the usual business relations;
bribing buyers of competitors, aimed at attracting them to their side;
industrial espionage;
unauthorized use or disclosure of a competitor's know-how, disclosure of scientific, technical, production or trade information, including trade secrets, without the consent of its owner;
enticement of highly skilled workers of competitors;
dumping (sale of goods at bargain prices below cost);
issuing an advertisement that compares it to competitors' products or services.

Thus, monopoly manifests itself in many forms, and no one has yet been able to overcome its basis - market power - with the help of decrees or comprehensive control. At best, these attempts are easily bypassed by monopolists; at worst, they lead to the interpenetration of state and monopoly economic structures and corruption. The only effective mechanism for limiting monopoly is the market itself, based on private property, which during the centuries of the historical development of commodity production was the real force that prevented the total monopolization of the economy.

It follows that the main ways to overcome monopolism are: the formation of a normally functioning market economy and a competitive environment, the development of small business, and the privatization of enterprises. This includes all measures to demonopolize the economy, the main task of which is to ensure equal freedom for all participants in economic activity, regardless of the form of ownership, the scale of production and marketing of products, and the location of the enterprise.

In developed countries, the state opposes monopolism with all its economic and political power, finds effective methods and mechanisms of pressure on monopolistic structures and the formation of an economic and political environment that encourages competition.

In countries with developed market economies, there are laws on unfair competition that protect competitors from such actions.

Monopolistic activity– actions (inaction) of economic entities, state bodies that are contrary to the antimonopoly legislation, aimed at preventing, restricting or eliminating competition, as well as harming the rights, freedoms and legitimate interests of consumers.

Legislation provides legitimate species monopolistic activity:

1) State monopoly- this is a system of social relations in which the state, represented by certain state bodies or other authorized entities, has the exclusive right to carry out certain types of activities.

2)natural monopoly- a system of public relations sanctioned by the state, in which the satisfaction of demand in the product market is more efficient in the absence of competition due to the technological features of production, and the corresponding goods cannot be replaced in consumption by other goods, and therefore the demand in this product market is less dependent on from price changes than the demand for other goods 5 .

3) Extraordinary monopoly- a system of public relations in the commodity market for the creation, sale or consumption of goods, sanctioned by the state for a certain period of time.

Kinds monopolistic activities of economic entities:

1. Abuse by an economic entity of its dominant position in the market.

Dominant position in the commodity market (dominant position) - the exclusive position of an economic entity or several economic entities in the market of goods that do not have substitutes or interchangeable goods, giving him (them) the opportunity to exert a decisive influence on the general conditions for the circulation of goods in the relevant commodity market or hinder access to the commodity market for other economic entities.

2. Agreements and actions of economic entities leading to the restriction of competition. This type of monopolistic activity can be carried out by business entities - competitors in the form of joining or creating associations, concluding agreements.

3. Standard terms of transactions. These are any pre-determined, reusable conditions that one contracting party (the party proposing the conditions) establishes for another contracting party at the conclusion of the contract and which have not been agreed in detail by the parties to the contract, regardless of whether these conditions are set out in an externally separate component of the agreement or in the main text of the agreement, as well as from their number, the method of execution of the agreement itself (in a simple written or notarial form) and its corresponding conditions.

A separate type of monopolistic activity is activities of state bodies and other local government bodies. Depending on the number of participants, it can be:

1) individual. It is expressed in the adoption (issuance) of acts, the commission of other actions that limit the independence of economic entities; create discriminatory operating conditions for certain economic entities, if such acts or actions have or may result in restriction of competition and (or) harm to the rights, freedoms and legitimate interests of economic entities or citizens

2) collective. The forms of its manifestation are agreements (concerted actions) of a state body with another state body or with an economic entity that have or may result in restriction of competition and (or) harm to the rights, freedoms and legitimate interests of economic entities or citizens. The goals of concluding such agreements (concerted actions) are: the division of the commodity market according to the territorial principle; by types, volumes of transactions; by types, volumes of goods and their prices; by the circle of consumers; exclusion or restriction of access to the commodity market of other economic entities; illegal increase, decrease or maintenance of prices, including at auction

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

over 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 (h 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.

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

establishment, maintenance of a monopoly high or monopolistically low price of goods; 2)

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 cost-effectively, and also if such a reduction or termination of production of goods is not directly provided for by federal laws, regulatory legal acts of the President of the Russian Federation , the Government of the Russian Federation, authorized federal executive bodies or judicial acts; 5)

economically or technologically unjustified refusal or evasion from concluding 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 directly provided for by federal laws, regulatory legal acts of the President of the Russian Federation, the Government of the 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 by a financial institution of an unreasonably high or unreasonably low price of a financial service; 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.

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, inaction, agreements, concerted actions, transactions, if they do not create an opportunity for individuals to eliminate

competition in the relevant product market, no restrictions are imposed 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, and also 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)

receipt 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 constituent entities of the Russian Federation, local governments, 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)

division of 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)

) business entities or executive authorities (local self-government bodies) aimed at preventing, restricting or eliminating competition and, therefore, contrary to antimonopoly legislation (Article 4 of the Law of the RSFSR dated March 22, 1991 No. 948-1 "On Competition and Restriction of Monopoly activities in commodity markets" - hereinafter the Law on Competition). This definition, strictly following the scope of the Competition Law, applies only to product markets. The general definition of the term "M.d." not included in the law. In addition, not all actions, such as business entities. formally falling under the indicated signs can be qualified as M.d. (for example, actions that form part of unfair competition do not belong to M.d.).

Recognition of monopolistic activity depends not only on the composition of the act, but also on who performs this act. Not the subject becomes a monopoly from that. what M.D. begins to engage in. but on the contrary, the activity becomes monopolistic due to the fact that a monopoly begins to engage in it. The nature (reason for the emergence) of this monopoly may be different. Usually, a monopoly is an economic entity or several interconnected economic entities that occupy a dominant, i.e. exclusive position on the market of a product that has no analogue, or interchangeable goods (hereinafter referred to as a certain product), giving him (them) the opportunity to influence the relevant product market or hinder access to the market for other economic entities (see Dominant position).

Legal regulation M.d. can be done in two ways. The first is conditionally called American, the second - European. The American method proceeds from the principle of the presumption of the harmfulness of monopolies, and therefore prohibits their activities. And only when a particular company (several merging companies) proves that it is its monopoly that will be useful to the public interest, state bodies can authorize the emergence and operation of such a monopoly. The European way proceeds from the principle "there is no blessing in disguise", allowing the existence of monopolies, but under comprehensive and effective legislative control. And only when it is proved that the emergence of a particular monopoly will cause more harm than good, the authorities have the right to prohibit its creation or operation. Legislation that establishes the concept of monopoly and regulates the system of criteria in accordance with which the usefulness (harmfulness) of M.d. is determined, and. in addition, establishing restrictions on it is traditionally called antitrust law.

The antimonopoly legislation of the Russian Federation has taken a purely European path - monopolies can exist, M.d. allowed, but within certain limits. namely, under the condition that the monopolist does not abuse its dominant position in the market. Article 5 of the Law on Competition establishes that such actions of an economic entity that have or may result in restriction of competition and (or) infringement of the interests of other economic entities (a group of persons) or individuals are considered abuse, including: treatment, the purpose or result of which is the creation or maintenance of a shortage in the market or an increase in prices: b) imposing on the counterparty the terms of the contract that are not beneficial for him or not related to the subject of the contract (unreasonable demands for the transfer of financial resources, other property, property rights. labor force of the counterparty and etc.); c) the inclusion of discriminatory conditions in the contract. which put the counterparty in an unequal position with other economic entities; d) consent to conclude an agreement only after the introduction into it of conditions relating to goods in which the counterparty (consumer) is not interested: e) creating obstacles to access to the market (exit from the market) to other economic entities: ) the establishment of monopolistically high (low) prices: h) the reduction or cessation of production of goods for which there is demand or orders from consumers. if there is a break-even possibility of their production: i) unreasonable refusal to conclude an agreement with individual buyers (customers) if there is a possibility of production or supply of the relevant goods. The listed actions can be recognized as lawful only in exceptional cases, if the economic entity proves that the positive effect of its actions, including in the socio-economic sphere, will exceed the negative consequences for the commodity market in question.

The law also prohibits such a type of M.D. as the conclusion of agreements and the performance of concerted actions. limiting competition. Agreements (concerted actions) reached in any form in any form (concerted actions) of competing economic entities (potential competitors) that have (may have) an aggregate market share of a certain product of more than 35% are prohibited and invalidated in accordance with the established procedure. if such agreements are aimed at: a) establishing (maintaining) prices (tariffs), discounts, allowances (additional payments), margins; b) increase, decrease or maintenance of prices at auctions and tenders; other economic entities as sellers of certain goods or their buyers (customers): e) refusal to conclude contracts with certain sellers or buyers (customers). These agreements cannot be recognized as legal under any circumstances. In addition, agreements (concerted actions) of non-competing economic entities, fully or partially reached in any form, one of which

occupies a dominant position, and the other is its supplier or buyer (customer), as well as the actions of associations of commercial organizations (unions or associations), business companies and partnerships to coordinate the business activities of commercial organizations. if such agreements or actions have or may have the effect of restricting competition. They may be considered legitimate. if business entities prove. that the positive effect of their actions, including in the socio-economic sphere, will exceed the negative consequences for the commodity market in question. Article 7 of the Law on Competition to the category M.d. It also includes the adoption of acts and the performance of actions by federal executive authorities, executive authorities of the constituent entities of the Russian Federation and local governments aimed at restricting competition. Strictly speaking, these actions should not be classified as M.d. - they constitute a special group of actions aimed at restricting competition.

The federal body regulating M.D. is the Ministry of Antimonopoly Policy of the Russian Federation.

Along with M.D., the subject of which are ordinary monopolies, the legislation of the Russian Federation singles out and subjects the activities of subjects of natural monopolies to special legal regulation. Arsenal of legal means of regulation M.d. in conditions of natural monopoly is very limited, since the areas of activity recognized as a natural monopoly are such that any directive restrictions or prohibitions can significantly affect the efficiency of this activity, as well as the economic situation of the state as a whole. All methods of regulating its activities can be reduced to several large groups: legal limitation of prices and tariffs for goods, works and services of natural monopoly entities: the establishment of a licensing system for transactions involving the acquisition of any rights, income generation, etc. outside the scope of their direct professional activity.

Question about M.d. in the banking services market, the legislation of the Russian Federation bypasses almost complete silence, except for Art. 32 of the Law of the Russian Federation "On banks and banking activities" as amended by the Federal Law of February 3, 1996 17-FZ - "Antimonopoly rules". These rules are as follows: a) credit institutions are prohibited from entering into agreements and performing concerted actions aimed at monopolizing the banking services market, as well as at restricting competition in banking; control over the activities of credit institutions (groups of credit institutions) must not contradict antimonopoly rules: c) compliance with antimonopoly rules in the field of banking services is controlled by the Ministry of Antimonopoly Affairs of the Russian Federation jointly with the Central Bank.

Of the rules that mention the legal regulation of M.d. in other areas, we can name: the indication of Art. 23 of the Law of the RSFSR of July 4, 1991 No. 1545-1 "On Foreign Investments in the RSFSR" that enterprises with foreign investments can voluntarily unite into unions, associations, inter-industry, regional and other associations on conditions that do not contradict the antimonopoly legislation: the norm of Art. 4 of the Law of the Russian Federation of February 20, 1992 No. 2383-1 "On commodity exchanges and exchange trading" on the prohibition of the creation of exchange unions, associations and other associations, if this contradicts the requirements of the antimonopoly legislation of the Russian Federation. as well as the invalidity of agreements and actions of exchanges aimed at or entailing the elimination or restriction of competition in exchange trading: the prescription of Art. 17 of the Law of the Russian Federation of February 21, 1992 No. 2395-1-"On Subsoil" on the prohibition or invalidation of the actions of state authorities, as well as any business entities (subsoil users) aimed at restricting (contrary to the conditions of a tender or auction) access to participation in them by legal entities and citizens who wish to acquire the right to use subsoil in accordance with the Law: evasion of granting licenses to winners in a tender or at an auction: replacement of tenders and auctions by direct negotiations: discrimination of subsoil users creating structures that compete with economic entities occupying a dominant situation in subsoil use: discrimination of subsoil users in providing access to transport and infrastructure facilities.\" Similar rules apply in the field of insurance, communications, culture, etc.

Lit .: Bur l and n about in Yu.I. Market and antimonopoly legislation of Russia. M., 1992; Zhidko in O.A. Legislation on capitalist monopolies. M., 1968; Zhidko in O. Yakovlev L. Monopoly and Law//Economy and Law, 1989, No. 10; 3 and about rs to and and S.O. Syndicates and trusts. The doctrine of capitalist monopolies. Lectures. SPb.. 1914; Ivanov I.D. Modern monopolies and competition. M., 1980; Mozolin V.P. Corporations, monopolies and law in the USA. M.. 1966; Razumov K.L. "Antimonopoly" regulation and the problem of the invalidity of contracts in conditions of capitalist integration//Soviet State and Law, 1978, No. 8.

Belov V.A.

Law Encyclopedia. 2005 .

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