Explanation of the face on the recovery of damages for violation of antimonopoly legislation. Main provisions of the antimonopoly law Actions contrary to the antimonopoly law

06.03.2023

The Presidium of the Federal Antimonopoly Service approved the Explanation "On determining the amount of losses caused as a result of violation of the antimonopoly law" dated October 11, 2017 No. 11.

The FAS, in its clarification, quite succinctly describes the main issues related to the recovery of losses caused by violation of the antimonopoly law.

At the same time, part of the clarifications equally applies to any disputes on the recovery of damages and does not have industry specifics.

The clarification, in particular, contains the following provisions.

1. Subject of proof in claims for the recovery of damages

In accordance with paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) dated 06/23/2015 No. 25 “On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation” (hereinafter referred to as the resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/23/2015 25) in cases of compensation for losses, the plaintiff is obliged to prove that the defendant is the person whose actions (inaction) caused damage, as well as the facts of violation of the obligation or causing harm, the presence of losses (paragraph 2 of Article 15 of the Civil Code of the Russian Federation).

The absence of guilt is proved by the person who violated the obligation (paragraph 2 of Article 401 of the Civil Code of the Russian Federation). Thus, guilt in breach of an obligation or in causing harm is presumed until proven otherwise.

Taking into account the stated requirements of Article 15 of the Civil Code of the Russian Federation and taking into account the peculiarities of cases on recovery of losses caused by violation of antimonopoly legislation, the subject of proof includes the following facts for the plaintiff:

- commission by a specific person (persons) of an action or inaction, agreement, act contrary to the antimonopoly legislation;

- the plaintiff's losses and their amount;

- a causal relationship between the violation of the plaintiff's rights (illegal behavior) and his losses.

2. Contradictory action or inaction, agreement, act of the defendant contrary to the antimonopoly law

The victim must prove that the offender:

- has committed a certain anti-competitive action or has not taken the action required of him in accordance with the antimonopoly legislation (he has committed inaction),

has entered into an agreement or

— adopted an act that is contrary to the legislation on protection of competition.

The presence of a decision of the antimonopoly body confirming the violation of the antimonopoly law, Not is a requirement for a claim for damages.

However, an analysis of law enforcement practice shows that in almost all cases, claims for the recovery of damages are initiated after the antimonopoly authority makes a decision on violation of the antimonopoly law.

If the lawfulness of the decision of the antimonopoly body has already been confirmed in a case previously considered by the arbitration court, the courts also apply paragraph 2 of Article 69 of the Arbitration Procedure Code of the Russian Federation and consider the fact of violation of the antimonopoly law to be a prejudicially established circumstance if the same persons are involved in the case.

At the same time, the legislation does not prevent the injured person from filing a claim for damages before or without the relevant decision of the antimonopoly authority.

In such cases, the antimonopoly body must be notified by the court of the commencement of the proceedings, and in the future, the status of the antimonopoly body as a participant in the process must be determined (paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30, 2008 N 30 “On Certain Issues Arising in Connection with application of antimonopoly law by arbitration courts).

3. Presence of losses and their size

Article 15 of the Civil Code of the Russian Federation and Part 3 of Article 37 of the Law on Protection of Competition allow a person who has suffered from a violation of antimonopoly legislation to recover both real damage and lost profits.

real damage represents the costs that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property.

As noted in paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25, when resolving disputes related to compensation for losses, it must be borne in mind that real damage includes not only the costs actually incurred by the person concerned, but also the costs which this person will have to produce in order to restore the violated right.

An example of real damage is the payment by the injured person of an unreasonably high (due to the cartel, unjustified withdrawal of goods from circulation, etc.) price, as well as the incurring by the injured person of unreasonable expenses in connection with the imposition by the violator of unfavorable terms of the contract or refusal to conclude the contract, etc.

Lost profit represents unearned income that this person would have received under normal conditions of civil circulation if his right had not been violated (paragraph 2 of Article 15 of the Civil Code of the Russian Federation).

Since lost profits represent lost income, when resolving disputes related to its reimbursement, it should be taken into account that its calculation, presented by the plaintiff, as a rule, is approximate and is of a probabilistic nature. This circumstance in itself cannot serve as grounds for dismissing the claim.

By virtue of paragraph 2 of Article 15 of the Civil Code of the Russian Federation, if the person who violated the right received income as a result, the person whose right was violated has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income.

Since the lost profit represents precisely the lost income (profit) of the affected person, the fundamental approach provided for in paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/01/1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” (currently, the courts are guided by similar explanations contained in paragraph 2 of clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 N 7 “On the application by the courts of certain provisions of the Civil Code of the Russian Federation on Liability for Violation of Obligations). Within the meaning of this paragraph, the amount of lost income (lost profit) should be determined taking into account the reasonable costs that the creditor had to incur in order to extract this income (production, transportation and other costs).

The victim must prove the existence of a causal relationship between the losses incurred and the unlawful act - a violation of the antimonopoly law.

The existence of a causal relationship is probably the most difficult element of proof in damages cases. A direct (immediate) causal relationship exists when there are no circumstances relevant to civil liability in the chain of successively developing events between the unlawful behavior of a person and losses.

5. Determining the amount of damages in judicial practice

When determining the amount of losses, the positions set forth in paragraphs 12 and 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 No. 25 are of fundamental importance:

"12. The amount of damages to be compensated must be established with a reasonable degree of certainty. Within the meaning of paragraph 1 of Article 15 of the Civil Code of the Russian Federation, a claim for damages cannot be refused on the sole ground that their exact amount cannot be established. In this case, the amount of damages to be compensated is determined by the court, taking into account all the circumstances of the case, based on the principles of fairness and proportionality of liability to the committed violation.

"14. Within the meaning of Article 15 of the Civil Code of the Russian Federation, lost profits are lost income, by which the property mass of the person whose right has been violated would have increased if there had been no violation. Since lost profits represent lost income, when resolving disputes related to its reimbursement, it should be taken into account that its calculation, presented by the plaintiff, as a rule, is approximate and is of a probabilistic nature. This circumstance, in and of itself, cannot serve as grounds for dismissing the claim.”

At present, a similar rule is enshrined in paragraph 5 of Article 393 of the Civil Code of the Russian Federation in relation to losses for breach of obligations. According to this rule, the amount of damages subject to compensation must be established with a reasonable degree of certainty. The court may not refuse to satisfy the creditor's claim for damages caused by non-performance or improper performance of an obligation, only on the ground that the amount of damages cannot be established with a reasonable degree of certainty. In this case, the amount of damages subject to compensation is determined by the court, taking into account all the circumstances of the case, based on the principles of fairness and proportionality of liability to the committed violation of the obligation.

6. Cost transfers and claims by indirect buyers

Cost transfer exists when an entity, whose costs have increased due to a violation of antimonopoly law committed by other persons (due to the acquisition by this entity of goods at inflated cartel prices or monopolistically high prices, etc.), increases the cost of its own goods, services or work, thereby “shifting” their increased financial burden onto other persons (in whole or in part).

If the victim wholly or partially shifted his negative financial consequences onto his own buyers, then he cannot claim damages in the form of the difference between the fair market price and the inflated price at which the injured entity bought the violator's goods. Since it allows to exclude the recovery of excessive losses from the violator, unjustified enrichment of the victim, who has already minimized his losses by increasing his own selling prices.

At the same time, it should be taken into account that even the full transfer by the person affected of the violation of his increased costs to his own counterparties (increasing his own selling prices) does not mean that he has no losses at all. As a rule, an increase in the price of a product leads to a decrease in demand for it and, accordingly, a decrease in the income of the seller.

The use by the infringer of protection based on the transfer of costs by the affected person and the actual functioning of markets, in which overpricing by the infringer usually entails an increase in prices by his counterparties (increase in prices along the resale chain or increase in prices for goods, services and works produced using the infringer's product) raises the question of the admissibility of claims against violators by persons who are not their direct counterparties.

An affirmative answer to this question also does not contradict the current Russian legislation.

Indirect buyers of products (goods, works, services) of the violator also have the right to demand compensation for losses from him. At the same time, there is no “doubling” of the amounts recovered: in terms of increased costs, both the primary and secondary buyers can claim damages only in relation to the costs that fell on them and were not transferred by them further to their own counterparties.

But the clarifications do not provide specific examples of such a penalty.

The core of the Russian antimonopoly legislation is the Law of the RSFSR “On Competition and Restriction of Monopolistic Activities in Commodity Markets” dated March 22, 1991 (hereinafter referred to as the Law). Monopolistic activities, according to Article 4 of the Law, are actions of business entities or federal executive authorities, executive authorities of the constituent entities of the Russian Federation and local governments that are contrary to antimonopoly legislation and are aimed at preventing, restricting and eliminating competition.

Section II of the Law is devoted to forms of monopolistic activity. It consists of five articles that provide for the regulation of the abuse of a dominant position in the market, vertical and horizontal (cartel) monopoly agreements, the activities of executive authorities and local governments that restrict competition, as well as the inadmissibility of participation in entrepreneurial activities of officials of public authorities and public administration .

In paragraph 1 of Art. 5 of the Law establishes a general prohibition of abuse by an economic entity (group of persons) of a dominant position in the market. This prohibition applies to actions that have or may result in the restriction of competition and (or) infringement of the interests of other economic entities or individuals.

Approximate forms of occurrence of abuse of a dominant position, specified in Art. 5 of the Law on Competition, the following:

Withdrawal of goods from circulation, the purpose or result of which is the creation or maintenance of shortages in the market or an increase in 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 (unreasonable demands for the transfer of financial resources, other property, property rights, labor force of the counterparty, etc.);

Inclusion in the contract of discriminatory conditions that put the counterparty in an unequal position compared to other business entities;

Consent to conclude a contract only if provisions are made in it regarding goods in which the counterparty (consumer) is not interested;

Creation of barriers to market access (exit from the market) by another economic entity;

Violation of the pricing procedure established by regulatory enactments;

Establishment of monopolistically high (low) prices;

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

Unreasonable refusal to conclude an agreement with individual buyers (customers) if it is possible to manufacture or supply the relevant goods.

According to Art. 6 of the Law, anti-competitive agreements (concerted actions) are the most dangerous and common form of monopolistic activity in a market economy.

Paragraph 1 of this article concerns the so-called horizontal (cartel) agreements, i.e. agreements between business entities of the same level. Thus, fully or partially agreements reached in any form by competing economic entities with an aggregate market share of a certain product of more than 35% of the product are prohibited and invalidated in accordance with the established procedure, if such agreements may result in restriction of competition.

Clause 2 of Article 6 of the Law is devoted to vertical anti-competitive collusion. Thus, agreements reached in any form by non-competing economic entities, one of which occupies a dominant position, and on the other hand is its supplier and buyer, are prohibited if such agreements have or may result in restriction of competition.

Articles 7 and 8 of the Law are directed against monopolistic activities in the field of economic management during the period of transition from the command-administrative system to market relations. It should be noted that these provisions are not inherent in the legislation of industrialized countries; they are more characteristic of countries with economies in transition.

According to paragraph 1 of Article 7 of the Law, federal executive authorities, executive authorities of the constituent entities of the Russian Federation and local governments are prohibited from adopting acts and taking actions that limit the independence of economic entities, create discriminatory or, conversely, favorable conditions for the activities of individual economic entities, if such acts and actions have or may result in the restriction of competition and infringement of the interests of economic entities or citizens.

When merging, creating, joining commercial organizations, various manifestations of anti-competitive consequences are possible. Articles 17 and 18 of the Law regulate the control of the following types of economic concentration: 1) creation, merger and accession of associations of commercial organizations, as well as commercial organizations themselves; 2) the acquisition of certain blocks of shares (deposits, shares) in the authorized capital of economic entities; 3) liquidation and division (separation) of state and municipal unitary enterprises; 4) ownership or use by one business entity of fixed production assets and intangible assets of another business entity; 5) the acquisition by any person of the rights that allow determining the conditions for the conduct by an economic entity of its entrepreneurial activity; 6) interweaving directorates.

Protocol approved
Presidium of the FAS Russia
dated 11.10.2017 No. 20

Clarifications on determining the amount of losses caused as a result of violation of the antimonopoly law (hereinafter referred to as the Clarifications) are given for the territorial bodies of the FAS Russia in order to form the position of the antimonopoly body on issues related to determining the amount of losses caused as a result of violation of the antimonopoly law, in case of involvement of the territorial body to participate in the case before the court.

The clarifications can also be used when considering cases of violation of antimonopoly legislation to prevent, restrict, eliminate competition, establish infringement of the interests of economic entities in the field of entrepreneurial activity or an indefinite number of consumers in case of abuse of a dominant position.

Similarly, the provisions of these Clarifications can also be used by the territorial bodies of the FAS Russia in order to determine the amount of damage caused by violations of the antimonopoly legislation as a circumstance aggravating administrative liability in cases established by law (Articles 14.31, 14.31.2, 14.32, 14.33 of the Code of the Russian Federation on Administrative offenses (hereinafter - the Code of Administrative Offenses of the Russian Federation)).

In addition, this Interpretation may assist injured parties and violators in identifying damages caused by an antitrust violation in order to recover them in court or settle claims without litigation.

These Clarifications summarize most of the existing methods for determining losses, formed as a result of a study of both Russian law enforcement practice and foreign experience.

In particular, in the preparation of this document, the damage assessment methods included in the Practical guide "Quantifying harm in actions for damages based on breaches of article 101 or 102 of the treaty on the functioning of the EU" were used, which have found wide practical application in the courts of the countries -EU members.

At the same time, the Clarifications do not limit the list of acceptable methods for determining losses, they are of an informational and advisory nature and are designed to help make more accessible information about the types of losses caused by violations of the antimonopoly law, and the applicable methods for assessing and calculating such losses.

Any applicable method, if justified and reasonable, may be applied in determining the amount of damages along with the methods discussed in this Clarification.

It is also important to note that none of the loss calculation methods presented in this document has a known priority status. The priority of this or that technique is primarily dictated by the circumstances of a particular case, the amount and nature of the data available.

Further in the text of the Clarifications, where necessary, such examples are analyzed and appropriate notes to them are given. At the same time, the relevant notes are aimed solely at the analysis of law enforcement practice and cannot be considered as criticism of judicial acts or legal positions of the participants in the relevant disputes.

1. General Provisions

1.1. Compensation for losses as a way to protect the rights and legitimate interests of a person who has suffered from a violation of antimonopoly law

Violation of the antimonopoly law by some persons may lead to negative consequences for others.

If abuse of dominance, unfair competition, cartel or other violations of antimonopoly law have caused losses to someone, the affected person (persons) has the right to apply to the court with a claim for their recovery.

At the same time, in practice, the initiation and consideration of such cases is associated with a number of significant difficulties, the main of which is the difficulty in determining the amount of damages caused.

Protection of the rights of persons affected by the violation of antimonopoly legislation is carried out according to the general rules of civil law. Consequently, the injured person has the right to use any means of protecting his property rights, which are provided for in Article 12 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

The civil legislation of the Russian Federation in most cases allows you to find an effective remedy.

At the same time, one of the main ways of protection is the recovery of losses of a person who has suffered from a violation of the antimonopoly legislation.

Any person who believes that as a result of relevant actions (inaction), agreements , acts suffered damages.

This is also indicated by special norms of the antimonopoly legislation: persons whose rights and interests have been violated as a result of violation of the antimonopoly legislation have the right to apply in accordance with the established procedure to the court, arbitration court with claims, including claims for the restoration of violated rights, compensation for losses, including lost benefit, compensation for damage caused to property (Part 3 of Article 37 of the Federal Law of July 26, 2006 No. 135-FZ “On Protection of Competition” (hereinafter referred to as the Law on Protection of Competition).

Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right was not violated (lost profit) (paragraph 2 of Article 15 of the Civil Code of the Russian Federation).

1.2. Subject matter of claims for damages

The absence of guilt is proved by the person who violated the obligation (paragraph 2 of Article 401 of the Civil Code of the Russian Federation). As a general rule, the person who caused harm is exempt from compensation for harm if he proves that the harm was caused through no fault of his (paragraph 2 of Article 1064 of the Civil Code of the Russian Federation).

Thus, guilt in breach of an obligation or in causing harm is presumed until proven otherwise.

Commitment by a specific person (persons) of an action or inaction, agreement, act contrary to the antimonopoly legislation;

The plaintiff's losses and their amount;

Causal relationship between the violation of the plaintiff's right (illegal behavior) and his losses.

Example. Decree of the Arbitration Court of the Urals District dated October 23, 2015 in case No. A50-24853/2014 on the recovery of damages from a technologically unjustified refusal to extend the term of the technical conditions and the imposition of unfavorable terms of the contract:

Recognizing the dismissal of the claim as justified, the court indicated that in order for the right to damages to arise, the plaintiff must prove the totality of such circumstances as the fact of causing damages and its size; unlawfulness of the behavior of the tortfeasor; the existence of a causal relationship between the occurrence of harm and the unlawful behavior of the harm-doer. In this particular case, this combination of circumstances was not, in the opinion of the courts, proven by the plaintiff.

1.2.1. Action or inaction, agreement, act of the defendant that is contrary to the antimonopoly law. Significance of the decision of the antimonopoly body in the case of violation of the antimonopoly law

The victim must prove that the violator has committed a certain anti-competitive action or has not taken the action required of him in accordance with the antimonopoly law (allowed inaction), entered into an agreement or adopted an act that is contrary to competition law.

The presence of a decision of the antimonopoly body confirming the violation of the antimonopoly law is not a mandatory requirement for satisfying a claim for the recovery of damages. However, an analysis of law enforcement practice shows that in almost all cases, claims for the recovery of damages (as well as for the recovery of unjust enrichment) are initiated after the antimonopoly authority makes a decision on violation of the antimonopoly law.

Of course, such an approach strengthens the legal position of the plaintiff, since the fact of violation of the antimonopoly law will be confirmed by the decision of the competent authority.

Decisions on cases of violation of the antimonopoly law, as well as other documents containing the written positions of the antimonopoly authorities, are accepted by the courts as important evidence in cases of recovery of damages.

If the lawfulness of the decision of the antimonopoly authority has already been confirmed in a case previously considered by the arbitration court, the courts also apply paragraph 2 of Article 69 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) and consider the fact of violation of the antimonopoly law to be a prejudicially established circumstance if the same faces.

Example 1. Decision of the Arbitration Court of Moscow dated February 19, 2013, decision of the Federal Arbitration Court of the Moscow District dated September 4, 2013 in case No. A40-135137/2012 on the recovery of damages caused by violation of paragraphs 3, 10 of part 1 of Article 10 of the Law on Protection of Competition , illegal requirement to pay at the conclusion of the contract 10 000 000 RUB. and illegal termination of heat supply.

When considering the case, the courts pointed out that the fact of violation of the antimonopoly legislation (illegality of actions) by the defendant was established by the decision of the antimonopoly authority. At the same time, judicial acts in case No. A40-103582/11 that have entered into force recognized the decision of the antimonopoly authority as lawful and justified.

Guided by this circumstance and paragraph 2 of Article 69 of the Arbitration Procedure Code of the Russian Federation, the courts released the plaintiff from the need to additionally prove the illegality of the defendant's actions.

Example 2. Decision of the Moscow Arbitration Court dated July 12, 2010 in case No. А40-46424/10-59-378 on the recovery of damages (RUB 1,141,085,606.15) caused by the violation of Clause 6, Part 1, Article 10 of the Law on Protection of Competition.

As evidence of abuse by the defendant of a dominant position in the form of unreasonable setting for the plaintiff of a different (inflated) price for the goods compared to other consumers, the court accepted the written recommendations of the FAS Russia dated November 22, 2007 No. IA / 22458 on pricing in relation to this product and a court case, which expressed the position of the antimonopoly body on the value of the economically justified price for this product.

The complexity of many antimonopoly cases, the specifics of a number of product markets, and the limited amount of information required often make it possible to establish the fact of a violation of competition law and the rights and legitimate interests of specific individuals only after a lengthy antimonopoly investigation.

At the same time, during the consideration of a case on violation of the antimonopoly law, it may also be established that the actions (inaction) of the defendant in the antimonopoly case did not violate the antimonopoly law, adverse consequences in the form of preventing, restricting, eliminating competition and (or) infringing on the interests of other persons (economic entities) in the field of entrepreneurial activity or an indefinite circle of consumers, which will save the parties from further litigation.

In this regard, in many cases, the preliminary filing of a violation of the law with the antimonopoly authority becomes the preferred step for potential plaintiffs in cases of damages (as well as unjust enrichment).

Example. Decision of the Arbitration Court of Moscow dated July 25, 2013, decision of the Ninth Arbitration Court of Appeal dated November 6, 2013 in case No. A40-33952 / 2013 on the recovery of damages caused, according to the plaintiff's position, by the defendant's violation of paragraphs 6, 8 of part 1 of the article when selling goods 10 of the Competition Law.

The courts dismissed the suit because, in their opinion, the plaintiff did not prove that the defendant abused his dominant position. At the same time, the antimonopoly body involved in the case as a third party did not see a violation of the antimonopoly law in the defendant's actions.

It is important to note that if a person who considers himself potentially injured applies for protection to the antimonopoly body in a timely manner, the existing procedural deadlines for considering antimonopoly cases make it possible to fully comply with the statute of limitations for going to court in the future.

Among foreign jurisdictions, recovery of damages on the basis of a violation of competition law, confirmed by the decision of the antimonopoly authority, is common, in particular, in European countries and is referred to as "follow-on" claims.

At the same time, the legislation does not prevent the affected person from filing a claim for damages before or without the appropriate decision by the antimonopoly authority (the so-called “stand-alone” claims, according to foreign legal terminology).

Example. Decree of the Federal Arbitration Court of the Moscow District dated December 20, 2011 in case No. A40-12966/2010.

The court of cassation confirmed that the plaintiff in the case of recovery of damages has the right to prove the defendant's violation of the antimonopoly law not only by referring to the decision of the antimonopoly body, but also by presenting other evidence.

In such cases, the antimonopoly body must be notified by the court of the commencement of the proceedings, and in the future, the status of the antimonopoly body as a participant in the process must be determined (paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2008 No. 30 “On Certain Issues Arising in Connection with application of antimonopoly law by arbitration courts).

1.2.2 Presence of losses and their amount

At the same time, in accordance with Article 15 of the Civil Code of the Russian Federation, as a general rule, a person whose right has been violated may demand full compensation for the losses caused to him. Compensation for losses in a smaller amount is possible in cases provided for by law.

Real damage is the costs that the person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property.

Example 1. Decision of the Moscow Arbitration Court dated July 12, 2010 in case No. А40-46424/10-59-378 on the recovery of real damage caused by the defendant's violation of paragraph 6 of part 1 of Article 10 of the Law on Protection of Competition.

The court found that the price for the goods, determined by the defendant in the contract with the plaintiff, differed from the prices set by the defendant in contracts with other buyers, and exceeded the fair price for this product, calculated in accordance with the recommendations of the Federal Antimonopoly Service of Russia.

As a result, the court recovered in favor of the plaintiff real damage in the amount of 1,141,085,606 rubles. 15 kop. (the difference between the price of the goods paid by the plaintiff, unlawfully set by the defendant, and the price determined as justified by the FAS Russia).

Example 2. Decision of the Arbitration Court of the City of Moscow dated March 12, 2013, decision of the Federal Arbitration Court of the Moscow District dated September 30, 2013 in case No. A40-143297 / 2012 on the recovery of damages in connection with the violation of clause 4 of part 1 of Article 10 of the Law on Protection of Competition.

The courts exacted real damages from the railway company, which unreasonably refused to provide the plaintiff with gondola cars for loading. This damage was expressed in the additional costs of the plaintiff due to the forced use of the services of other contractors. Thus, when substantiating the amount of real damage to the injured person, it is necessary to provide not only mathematical calculations, but also relevant evidence, which can include: the difference between the price actually paid by the victim as a result of the violation, and the price that could be set in the absence of a violation, and etc.

Lost profit is lost income that this person would have received under normal conditions of civil circulation if his right had not been violated (paragraph 2 of Article 15 of the Civil Code of the Russian Federation).

Paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 No. 25 also states that lost profits are lost income, by which the property mass of the person whose right was violated would have increased if there had been no violation.

As the Plenum of the Supreme Court of the Russian Federation explains in the same place, since the lost profit is a lost income, when resolving disputes related to its compensation, it should be taken into account that its calculation, presented by the plaintiff, as a rule, is approximate and is of a probabilistic nature. This circumstance in itself cannot serve as grounds for dismissing the claim.

Since the lost profit represents precisely the lost income (profit) of the affected person, the principled approach provided for in paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 01.07.1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” (currently, the courts are guided by similar explanations contained in paragraph 2 of clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7 “On the application by the courts of certain provisions of the Civil Code of the Russian Federation on Liability for Violation of Obligations). Within the meaning of this paragraph, the amount of lost income (lost profit) should be determined taking into account the reasonable costs that the creditor had to incur in order to extract this income (production, transportation and other costs).

A different approach would mean "overcompensation" of the plaintiff's property losses, his unjustified enrichment and the recovery of excessive amounts from the defendant.

While loss of profits damages are a common consequence of antitrust violations, this type of damages is the most difficult to prove. Refusals to satisfy claims for the recovery of lost profits are quite common.

At the same time, there is also a positive practice in such claims.

Example 1. Ruling of the Federal Arbitration Court of the Moscow District dated September 7, 2012 in case No. A40-118546/2010 in the case of recovery of lost profits caused by the unjustified termination of the supply of raw materials by the defendant (a violation of antimonopoly law was confirmed by the decision of the FAS Russia).

More than 111 million rubles were recovered in favor of the plaintiff. lost profits calculated on the basis of the conclusion of a forensic examination. According to the courts, the defendant's refusal to supply raw materials (belite sludge) was the only reason that prevented the plaintiff from producing and selling finished products (cement) and generating income.

It seems appropriate to cite here certain issues submitted by the court and the parties to this dispute for forensic examination (the ruling of the Moscow Arbitration Court in this case dated 07/01/2011):

“a) What income (minus the expenses that the Claimant would have incurred in the production of cement grade CEM II / A-SH 32.5 B out of 62,140 tons of belite sludge) would the Claimant have received if the Respondent had carried out in August 2008 supply of 62,140 tons of belite sludge under the supply contract dated April 1, 2006 No. 21-06-0116-00?

b) Was it possible for Claimant to produce CEM 11/А-Ш 32.5 B cement in August 2008?

c) If the Claimant had the opportunity to produce cement grade CEM 11/A-Sh 32.5 B in August 2008, what resources (raw materials, production facilities, personnel) did the Claimant have to produce cement of the specified grade? Are they necessary and sufficient for production?

d) Is the lack of delivery by the Defendant of 62,140 tons of belite slurry in August 2008 under contract No. 21-06-0116-00 of 04/01/2006 the only factor that did not allow the production of CEM 11/А-Ш 32.5 B cement? ?

e) Did the Claimant have the opportunity and obligation to sell cement grade CEM 11/А-Ш 32.5 B in August 2008 and to what extent?”

The examination confirmed the following:

If 62,140 tons of belite sludge had been delivered in August 2008, the plaintiff would have received additional income in the amount of 146,181,000 rubles.

The plaintiff had all the necessary resources for the production of cement, with the exception of belite slurry.

Claimant had guaranteed obligations to sell cement in August 2008.

As a result, the losses were determined by the court as the difference between the amount determined by the experts (146,181,000 rubles) and 35,000,000 rubles. fines collected from the defendant for improper performance of the contract in another dispute (case No. A40-82320/2008).

As a result, the plaintiff was awarded damages in the amount of RUB 111,181,000.

Both the plaintiff and the defendant in this dispute considered the examination necessary and jointly chose an expert organization.

Example 2. Ruling of the Supreme Court of the Russian Federation dated 07.12.2015 in case No. А40-14800/2014.

In this case, the courts of first and appeal instances and the Supreme Court of the Russian Federation established that the defendant's refusal to conclude a new supply contract (previously qualified by the Federal Antimonopoly Service of Russia as a violation of Article 10 of the Law on Protection of Competition) did not allow the plaintiff to take part in the auction for the supply of drugs for state needs. drugs, thereby causing the plaintiff losses (lost profits), the amount of which was determined as the amount of the bonus that the plaintiff would have received from the defendant if he had sold his drug. In favor of the plaintiff, damages were recovered in the amount of almost 410 million rubles.

1.2.3. Direct causality between violation and loss

The victim must prove the existence of a causal relationship between the losses incurred and the unlawful act - a violation of the antimonopoly law.

The existence of a causal relationship is probably the most difficult element of proof in damages cases. Often, courts refuse to satisfy claims on the grounds that the plaintiff has not proved the existence of a causal relationship between the violation and the losses incurred.

Example. Determination of the Supreme Arbitration Court of the Russian Federation dated 04/08/2013 in case No. A81-2843/2011 on the recovery of damages caused by violations during the tender for the purposes of the state order.

The court pointed out that between the unlawful behavior of one person and the losses incurred by another person whose right was violated, there must be a direct causal relationship, which was not proven by the plaintiff in this case.

According to established judicial practice, a direct (immediate) causal relationship exists when there are no circumstances relevant to civil liability in the chain of successively developing events between the unlawful behavior of a person and losses.

Example. Decision of the Third Arbitration Court of Appeal dated June 26, 2014 in case No. A33-6497/2013 on the recovery of losses caused by the violation by the state authority of the constituent entity of the Russian Federation of paragraph 2 of part 1 of Article 15 of the Law on Protection of Competition (unreasonable obstruction of the activities of business entities).

Confirming the legitimacy of the satisfaction by the court of first instance of the claim for the recovery of almost 8 million rubles. losses, the appellate court noted that only a direct (immediate) causal relationship between the unlawful behavior of the defendant and the losses of the plaintiff is important for this category of disputes. A direct (immediate) causal relationship occurs when there are no circumstances relevant to civil liability in the chain of successively developing events between the unlawful behavior of a person and losses.

Taking into account the presence in this dispute of a direct causal relationship between the actions of the defendant and the expenses incurred by the plaintiff, the court of appeal agreed that the plaintiff had proved the existence of circumstances that are the basis for the application of liability in the form of recovery of damages.

Similar conclusions about the need for a direct causal relationship between the violation and losses are made by the courts when considering cases on the recovery of damages caused by offenses that are not related to violations of competition law (decisions of the Arbitration Court of the Moscow District dated March 10, 2015 in case No. A40- 32230/14, of the Arbitration Court of the North-Western District dated February 20, 2015 in case No. A56-66479 / 2013, of the Ninth Arbitration Court of Appeal dated 10.02.2015 in case No. A40-3077 / 2015, of the Thirteenth Arbitration Court of Appeal dated 09.10.2015 in the case No. A21-8279/2014 and others).

In case of failure to prove a direct causal relationship between the unlawful behavior of the defendant and the losses of the plaintiff, the courts refuse to recover damages.

Example. Resolution of the Seventeenth Arbitration Court of Appeal dated November 7, 2012 in case No. A50-9824/2012 on the recovery of 209,962 rubles. damages caused by the defendant as a result of an act of unfair competition.

The courts of both instances refused to satisfy the claims, while the appellate court indicated that in demanding compensation for real damage, the person whose right was violated must prove a direct causal relationship between the damage and the actions of the person who violated the right, as well as his guilt.

The court of appeal considered that the totality of the indicated conditions was not proved by the plaintiff, and therefore the claims stated by him were not subject to satisfaction.

1.3. Determining the amount of damages in judicial practice

Thus, it can be stated that both the legislator and the Supreme Court of the Russian Federation have formulated an approach that clarifies the subject of proof in disputes on the recovery of damages in relation to pre-existing practice.

Based on the previously stated position of the Supreme Court of the Russian Federation, as well as its position contained in paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2016 No. 7, it is necessary for the plaintiff to prove not only the amount of losses, but, at a minimum, such grounds for claiming damages, as the fact that the damages occurred and the causal relationship between the wrongful conduct and the claimed damages.

This position is shared by the practice of arbitration courts.

Example. Ruling of the Court for Intellectual Property Rights dated 08.08.2014 No. C01-753/2014 in case No. A56-23056/2013 on the recovery of damages caused, among other things, by the defendant’s violation of Part 2 of Article 14 of the Law on Protection of Competition.

Revoking the decision of the court of appeal to dismiss the claim due to the lack of proof of the amount of damages, the Intellectual Property Rights Court indicated that the impossibility of substantiating the exact amount of lost profits (which in any case, due to objective reasons, can be calculated with varying degrees of probability), cannot serve as an obstacle to the restoration of the violated right in a situation where the remaining components of the entire set of circumstances, which are the basis for bringing the defendant to civil liability in the form of damages, are confirmed.

When considering specific disputes, arbitration courts recover losses from violations of antimonopoly legislation, determining the amount of losses as follows:

Example 1. When re-examining the above-mentioned case No. A56-23056 / 2013, the courts came to the conclusion that the amount of lost profits by the plaintiff was determined with a high degree of probability, sufficient to impose on the defendant the obligation to compensate for losses, and recovered more than 1.6 billion rubles from the defendant. rub. losses in the form of lost profits (decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region dated April 16, 2015, left unchanged by the courts of appeal and cassation).

The amount of losses in this case was determined as the difference between the cost of products planned for sale, but not sold, and the costs associated with the preparation of these products for sale.

Thus, the plaintiff submitted letters from buyers to the case materials, in which they informed the plaintiff about the number of goods planned to be purchased under supply contracts. The total cost of these goods, according to the plaintiff's calculation, amounted to 2,089,586,523 rubles. 70 kop.

In addition, the plaintiff provided a calculation of the costs of preparing goods for sale. The amount of these expenses amounted to 427,482,013 rubles. 80 kop.

As a result, the calculation of damages in this case was as follows:

RUB 2,089,586,523 70 kop. - 427,482,013 rubles. 80 kop. = 1,662,104,509 rubles. 90 kop.

It should be noted that the calculation of losses was verified by an expert. According to the expert's conclusion, the most probable value of the income that the plaintiff could derive from the sale of goods is 2,426,475,211 rubles, which significantly exceeds the amount of the claim.

Under such circumstances, the courts came to the conclusion that the amount of lost profits was determined with a high degree of probability, sufficient to recover damages.

Example 2. Decision of the Arbitration Court of Moscow dated July 12, 2010 in the previously mentioned case No. A40-46424/2010, by which more than 1.14 billion rubles were recovered in favor of the plaintiff. losses.

The defendant, occupying a dominant position in the commodity market, unreasonably set the price for apatite concentrate for the plaintiff higher than for other consumers.

The defendant did not provide evidence of the reasonableness of the established price, in connection with which the court concluded that the defendant had violated paragraph 6 of part 1 of Article 10 of the Law on Protection of Competition.

As a result of these illegal actions, the plaintiff was forced to purchase apatite concentrate from the defendant at a higher price than other Russian consumers, which caused him losses in the form of real damage.

Guided by Part 2 of Article 15 of the Civil Code of the Russian Federation, the court determined the plaintiff's losses as the difference between the price paid by the plaintiff under the contract and the price of apatite concentrate indicated by the FAS Russia as reasonable.

According to the court decision, the amount of this difference amounted to 1,141,085,606 rubles. 15 kop.

Example 3. Within the framework of case No. А40-135137/2012, 10 million rubles were recovered in favor of the plaintiff in losses incurred as a result of the defendant's unlawful evasion from concluding a contract for heat supply and the threat of cutting off heat supply.

An agreement was concluded between the plaintiff and the defendant for the supply of energy resources (thermal energy, hot and cold water, electricity).

However, after the start of the heating season, the defendant notified the plaintiff of the termination of the contract. Simultaneously, the defendant proposed to the plaintiff to renew the contractual relationship, subject to an increase in tariffs and an advance payment by the plaintiff in the amount of 10 million rubles.

By the decision of the antimonopoly authority and acts of arbitration courts, the defendant's actions were recognized as violating subparagraphs 3 and 10 of part 1 of Article 10 of the Law on Protection of Competition - the imposition of unfavorable terms of the contract and violation of the established pricing procedure.

Meanwhile, as a result of the actions of the defendant, the plaintiff was forced, due to the threat of a heat supply cutoff, to purchase a block-modular boiler house, as well as to conclude an agreement for the construction and installation work of the heating system. The total cost of equipment and construction and installation works amounted to 9,966,460 rubles. This amount was recognized as a loss by the plaintiff.

Example 4. By the decision of the Ninth Arbitration Court of Appeal dated 04/01/2015 in case No. A40-133312 / 2014, 429,850 rubles were recovered. losses caused by unlawful inclusion in the text of the contract and technical conditions of provisions that infringe on the rights of the plaintiff.

The defendant, taking advantage of his dominant position in the commodity market, in violation of the requirements of the law, prescribed in the technological connection agreement a provision imposing on the plaintiff the obligation to lay a cable line, as well as the obligation to settle relations with third parties through whose sections this cable line was supposed to pass.

In fact, the defendant, contrary to the requirements of the law, obliged the plaintiff to design and lay a cable line instead of a network organization.

The plaintiff's losses were calculated by the court as expenses under the contract for the performance of works on the architectural and construction design of the cable line, which were actually incurred by the plaintiff as a result of the execution of the terms of the contract illegally imposed by the defendant.

Example 5. In the framework of the previously mentioned case No. A40-143297 / 2012, 579,278 rubles were recovered in favor of the plaintiff. losses caused by the violation of clause 4 of part 1 of Article 10 of the Law on Protection of Competition, which resulted in the establishment of requirements for loading railway cars only with a certain type of goods.

In August and September 2010, the plaintiff sent electronic applications to the defendant in due time for the carriage of its goods by wagons belonging to the defendant's fleet.

As a result, in August and September 2010, the defendant did not provide the wagons necessary for the plaintiff to transport goods.

These actions of the defendant were recognized by the Federal Antimonopoly Service of Russia as abuse of a dominant position in the commodity market.

The plaintiff's losses were defined as the expenses that he incurred as a result of searching for other counterparties capable of providing wagons for transportation, and as a result of reissuing applications for the carriage of goods. This calculation was recognized by the court as correct, the requirements were satisfied in full.

Example 6. Decision of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 4158/09 dated February 2, 2010 in case No. A40-643 77/08-77-496.

In this dispute, the Supreme Arbitration Court of the Russian Federation recognized as lawful the recovery as damages of the difference between the economically justified price of the goods and the price overestimated by the dominant entity (it should be noted that the repealed by the Presidium of the Supreme Arbitration Court of the Russian Federation acts of lower courts, the difference recovered in favor of the plaintiff was determined in the amount slightly less than 2 billion rubles).

At the same time, the court pointed out that the right to recover damages under such circumstances does not depend on the validity of the contract (terms of the contract), on the basis of which the overpriced price was paid, if the supplier unreasonably applies different prices to different buyers.

Also, one of the methods for calculating losses is enshrined in paragraph 2 of Article 393.1 of the Civil Code of the Russian Federation, according to which the creditor is entitled to claim losses in the form of the difference between the current price and the price that was fixed in the unfulfilled contract. However, this method of calculating losses has not yet received significant practical application. In addition, the application of this rule in the recovery of damages is possible if there is a certain condition - the termination of the contract with the offender and the non-conclusion of a new one to replace the terminated one.

1.4. Legislative limitation of the possibility of recovering damages

In addition to the failure to prove any of the grounds for damages, the basis for refusal of a claim may be the legal nature of the relationship between the plaintiff and the defendant and the existing legislative restrictions on the recovery of damages in connection with this.

Part 3 of Article 37 of the Law contains a general rule that provides persons whose rights and interests have been violated as a result of violation of the antimonopoly law, the opportunity to use the methods provided for by law to protect civil rights. At the same time, the grounds and procedure for applying such a method of protection as compensation for losses, including lost profits, is regulated by the norms of civil law.

According to Article 15 of the Civil Code of the Russian Federation, as a general rule, a person whose right has been violated may demand full compensation for the losses caused to him. Compensation for losses in a smaller amount is possible in cases provided for by law or an agreement within the limits established by civil law (see also paragraph 11 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 No. 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code Russian Federation").

Example. Case No. A53-20302/2012 for the recovery of damages caused by the violation of part 1 of article 10 of the Law on Protection of Competition in the form of a unilateral refusal by the defendant to receive thermal energy from the plaintiff under an energy supply agreement:

The court of first instance satisfied the plaintiff's claim for the recovery of lost profits in the amount of more than 4 million rubles. However, the higher courts declared this decision unreasonable.

The plaintiff calculated the lost profit as 3% of the profit that he would have received based on the contractual amount of the energy resource to be sold.

Having considered this requirement, the courts of appeal and cassation appealed to Article 400 of the Civil Code of the Russian Federation. According to this rule, for certain types of obligations and for obligations related to a certain type of activity, the law may limit the right to full compensation for losses (limited liability).

Relations between economic entities arising in the field of energy supply are regulated by special rules of paragraph 6 of Chapter 30 of the Civil Code of the Russian Federation. In accordance with Article 547 of the Civil Code of the Russian Federation, in cases of non-fulfillment or improper fulfillment of obligations under an energy supply agreement, the party that violated the obligation is obliged to compensate for the real damage caused by this.

Thus, the law regulating a specific type of obligations limited liability for them in comparison with Article 15 of the Civil Code of the Russian Federation, which establishes the principle of full compensation for losses, including lost profits.

1.5. Cost transfers and claims by indirect buyers

In the context of the subject of proof in cases of damages, the so-called transfer of costs is of particular importance.

We are talking about situations where an entity, whose costs have increased due to a violation of antimonopoly legislation committed by other persons (due to the acquisition by this entity of goods at inflated cartel prices or monopoly high prices, etc.), increases the cost of its own goods, services or works, “shifting” thereby their increased financial burden onto other persons (in whole or in part).

Objecting to the stated claim or out-of-court claim, the defendant may refer to the fact that the victim has fully or partially shifted his negative financial consequences to his own buyers and cannot claim compensation for any losses in principle or calculate such losses as the difference between the fair market price and the overvalued the price at which the affected entity bought the offender's goods.

It is obvious that the defendant's use of this protection does not contradict the requirements of Russian law and makes it possible to exclude the recovery of excessive losses from the violator, unjustified enrichment of the victim, who has already minimized his losses by increasing his own selling prices.

In this regard, the conclusion from the Decision of the European Court of Justice of 02.10.2003 in case No. С-147/01 is extremely relevant: “even the complete transfer of the burden of the inflated price to its own customers does not mean that the buyer of the violator could not suffer from a drop in his sales volumes” .

An affirmative answer to this question also does not contradict the current Russian legislation.

At the same time, a direct causal relationship between the unlawful behavior of the defendant (violator) and the losses of the plaintiff will be that it was the defendant’s violation that caused the price increase by its direct buyers and, accordingly, caused an unreasonable increase in the costs of indirect buyers.

2. Conceptual approaches to the calculation of losses

This section is devoted to describing the conceptual approaches that form the basis for calculating losses caused by violation of antitrust laws. B discusses the general economic principles used in the calculation of losses. These include, in particular, counterfactual analysis, lost profits and lost profits. is devoted to an overview of specific analytical methods that can be used to conduct counterfactual analysis in practice. The concluding discussion discusses the sources of information used in the course of the examination for the calculation of damages.

Examples of the application of the approaches described above, including illustrative calculations, are given in the following and .

2.1. General principles

2.1.1. Counterfactual analysis

This approach assumes that when calculating the losses incurred by economic entities as a result of violation of antimonopoly legislation, it is necessary to consider the actual situation on the market in the subjunctive mood: what would the market, competitive environment or financial position of an economic entity look like in the absence of a violation?

The practical application of counterfactual analysis is always based on a set of assumptions about costs, prices, sales volumes, overall market size, profitability and other parameters of the competitive environment that would hypothetically take place in the market under study if the violation did not occur. The choice of these assumptions should be appropriately motivated by the party making the loss assessment.

To test the validity of the assumptions, it is necessary to apply economic methods. The approaches discussed in detail in this document can serve as a starting point for such an analysis, but they are not exhaustive. Depending on the characteristics of the situation under consideration, the use of other (more complex) economic methods and approaches cannot be ruled out. The choice of a particular analytical approach in practice should be appropriately motivated by the party making the loss assessment.

Once assumptions have been made about the main parameters of the market and the competitive environment, it is possible to begin to quantify the loss that has been inflicted on the affected person. From an economic point of view, this loss represents a loss of profit (business opportunity) that the injured person could realistically expect to receive (use) additionally in the absence of a violation.

Lost profits are calculated in monetary terms as lost profits (including lost business opportunities, which ultimately mean lost profits). Its assessment can be carried out using various indicators that directly or indirectly reflect lost profits. These may include, for example, a decrease in revenue, an increase in costs, loss of customers or a certain market share, a decrease in free cash flow, etc. The choice of the indicator that best reflects the lost profit should be appropriately justified by the party making the loss assessment.

2.1.2. Time factor and lost profit (lost profit)

In many cases, the need to assess losses arises some time after they were caused, for example, after a decision was made by the antimonopoly authority or court confirming the violation of antimonopoly law. This means that the affected person needs to evaluate not only the size of the loss at the time of its occurrence in the past, but also the current value of the loss (that is, at the time of the assessment), taking into account lost (investment or commercial) opportunities. Otherwise, the loss will not be assessed in full.

To illustrate, as a simple example, we can imagine a situation where, as a result of anti-competitive actions, the affected economic entity received less profit in the amount of 100 thousand rubles. a few years ago. However, if such an economic entity currently receives the entire specified amount in compensation for losses, then this will not compensate him for lost profits. Over the past time, the lost profit could have been invested by this entity in the development of its own business, and for these 100 thousand rubles. additional income could be generated.

If the affected person annually receives a return of 10% on invested capital, then the shortfall in profit in the amount of 100 thousand rubles, which could be invested within 2 years, will lead to an additional loss (lost profit) in the amount of 21 thousand rubles. rub. (10 thousand rubles = 100 thousand x 10% in the first year and 11 thousand rubles = 110 thousand x 10% in the second year). Obviously, this benefit is lost from the point of view of the economic entity in question. At the same time, the reason why this income was not received is precisely the violation of the antimonopoly law, which led to the initial loss of 100 thousand rubles.

The burden of proving the reality of extracting the specified profit and the direct causal relationship of its non-receipt with the committed violation lies with the person who suffered from the violation of the antimonopoly legislation.

2.1.3. Violations of the antimonopoly law that give rise to the calculation of losses (other financial losses to be covered by way of restitution)

In general, there are two main types of antitrust violations that result in similar types of financial loss.

Violations leading to an unreasonable increase in prices, setting unreasonably high prices and (or) maintaining prices at an inflated level.

Establishment, maintenance of monopoly high prices (clause 1 of part 1 of Article 10 of the Law on Protection of Competition);

Withdrawal of goods from circulation, if the result of such withdrawal was an increase in the price of the goods (paragraph 2 of part 1 of Article 10 of the Law on Protection of Competition);

Economically or technologically unjustified reduction or termination of the production of goods (paragraph 4 of part 1 of Article 10 of the Law on Protection of Competition);

Establishment by a financial organization of an unreasonably high price for a financial service (clause 7 of part 1 of Article 10 of the Law on Protection of Competition);

Violation of the pricing procedure established by regulatory legal acts (paragraph 10 of paragraph 1 of Article 10 of the Law on Protection of Competition);

Manipulation in the wholesale and (or) retail markets of electric energy (capacity) with prices (clause 11 of part 1 of article 10 of the Law on Protection of Competition);

Cartel agreements that led to the establishment or maintenance of prices (tariffs), discounts, allowances (additional payments) and (or) markups (paragraph 1 of part 1 of article 11 of the Law on Protection of Competition);

Cartel agreements that led to an increase or maintenance of prices at the auction (paragraph 2 of part 1 of Article 11 of the Law on Protection of Competition);

Cartel agreements on the division of the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers) (clause 3 of part 1 of Article 11 of the Law on Protection of Competition);

Cartel agreements that led to the reduction or cessation of the production of goods (paragraph 4 of part 1 of Article 11 of the Law on Protection of Competition);

Vertical agreements aimed at setting the resale price of goods (paragraph 1 of part 2 of Article 11 of the Law on Protection of Competition);

Vertical agreements with the obligation of the buyer not to sell the goods of an economic entity that is a competitor of the seller (paragraph 1 of part 2 of article 11 of the Law on Protection of Competition);

Agreements between economic entities that are participants in the wholesale and (or) retail electricity (capacity) markets, commercial infrastructure organizations, technological infrastructure organizations, grid organizations, if such agreements lead to price manipulation in the wholesale and (or) retail electricity (capacity) markets (Part 3 of Article 11 of the Law on Protection of Competition);

Concerted actions that led to the establishment or maintenance of prices (tariffs), discounts, surcharges (surcharges) and (or) markups (paragraph 1 of part 1 of Article 11.1 of the Law on Protection of Competition);

Concerted actions that led to an increase or maintenance of prices at the auction (paragraph 2 of part 1 of Article 11.1 of the Law on Protection of Competition);

Concerted actions aimed at dividing the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers) (clause 3 of part 1 of article 11 of the Law on Protection of Competition);

Concerted actions that led to the reduction or termination of the production of goods (paragraph 4 of part 1 of Article 11.1 of the Law on Protection of Competition);

Concerted actions of economic entities that are participants in the wholesale and (or) retail electric energy (capacity) markets, commercial infrastructure organizations, technological infrastructure organizations, grid organizations, if such agreements lead to price manipulation in the wholesale and (or) retail electric energy (capacity) markets ) (Part 2 of Article 11.1 of the Law on Protection of Competition);

Concerted actions of economic entities to impose on the buyer the terms of the contract that are unfavorable for him or not related to the subject of the contract, if this led to an increase in the costs of the buyer associated with the conclusion of the relevant contract (paragraph 1 of part 3 of Article 11.1 of the Law on Protection of Competition);

Agreements or concerted actions of authorities and business entities aimed at increasing or maintaining prices (tariffs) (paragraph 1 of Article 16 of the Law on Protection of Competition);

Agreements or concerted actions of authorities and business entities aimed at dividing the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold, or the composition of sellers or buyers (customers) (paragraph 3 of Article 16 of the Law on Protection of Competition).

Violations leading to restriction (creation of obstacles) of access to the market or leading to the elimination of competing economic entities from the commodity market.

Such violations, in particular, include the following violations, if they led to the named consequences:

Imposing on the buyer the terms of the contract that are unfavorable for him or not related to the subject of the contract (paragraph 3 of part 1 of article 10 of the Law on Protection of Competition);

Economically or technologically unjustified refusal or evasion from concluding a contract (paragraph 5 of part 1 of Article 10 of the Law on Protection of Competition);

Establishment by a dominant economic entity of a monopoly low price of goods (paragraph 1 of part 1 of Article 10 of the Law on Protection of Competition);

Establishment by a financial organization of an unreasonably low price for a financial service (clause 7 of part 1 of article 10 of the Law on Protection of Competition);

Creation of discriminatory conditions (point 8 of part 1 of Article 10 of the Law on Protection of Competition);

Creating obstacles to access to the commodity market or exit from the commodity market to other economic entities (paragraph 9 of part 1 of Article 10 of the Law on Protection of Competition);

Cartel agreements leading to the establishment or maintenance of monopolistically low prices (tariffs) (paragraph 1 of part 1 of Article 11 of the Law on Protection of Competition);

Cartel agreements leading to the reduction or cessation of the production of goods (paragraph 4 of part 1 of Article 11 of the Law on Protection of Competition);

Cartel agreements leading to the refusal to conclude contracts with certain sellers or buyers (customers) (paragraph 5 of part 1 of Article 11 of the Law on Protection of Competition);

Vertical agreements, which provide for the obligation of the buyer not to sell the goods of an economic entity that is a competitor of the seller (paragraph 2 of part 2 of article 11 of the Law on Protection of Competition);

Agreements between business entities to impose on the buyer the terms of the contract that are unfavorable for him or not related to the subject of the contract, if this led to an increase in the costs of the buyer associated with the conclusion of the relevant contract (paragraph 1 of part 4 of article 11 of the Law on Protection of Competition);

Agreements between economic entities on creating obstacles for other economic entities to enter the commodity market or exit from the commodity market (Item 3 of Part 4 of Article 11 of the Law on Protection of Competition);

Agreements between business entities on the establishment of conditions for membership (participation) in professional and other associations (paragraph 4 of part 4 of Article 11 of the Law on Protection of Competition);

Concerted actions that led to the refusal to conclude contracts with certain sellers or buyers (customers), unless such refusal is expressly provided for by federal laws (clause 5 of part 1 of article 11.1 of the Law on Protection of Competition);

Concerted actions that led to the imposition on the counterparty of the terms of the contract that are unfavorable for him or not related to the subject of the contract (paragraph 2 of part 3 of article 11.1 of the Law on Protection of Competition);

Unfair competition (Article 14 of the Law on Protection of Competition);

Agreements or concerted actions of authorities and business entities aimed at reducing prices (tariffs) (paragraph 1 of Article 16 of the Law on Protection of Competition);

Agreements or concerted actions of authorities and economic entities aimed at restricting access to the commodity market or removing economic entities from it (paragraph 4 of Article 16 of the Law on Protection of Competition).

This list is not exhaustive. These situations are discussed in detail in.

In some cases, it cannot be ruled out that affected persons incur losses (other financial losses compensated by way of restitution) both from rising prices and from obstacles to their access to the market.

2.2. Analytical approaches used to conduct counterfactual analysis

In some cases, some information about what might have happened in the market in the absence of a violation can be obtained from antitrust or court cases. For example, there may be evidence of correspondence between businesses involved in a pricing anti-competitive agreement that stipulates how much the prices were supposed to increase. Such information can be used to assess how much the prices were actually inflated as a result of the breach.

However, evidence of this kind is rarely available in practice. In such cases, the role of analytical methods is especially high, allowing counterfactual analysis to be carried out indirectly, using appropriate economic tools. These methods are discussed in detail in this section.

In general, there are two types of analytical methods that make it possible to make a hypothetical assessment of the price level and other market parameters that could arise in the absence of a violation (counterfactual analysis):

Comparative economic analysis.

Economic and financial modeling.

2.2.1. Comparative economic analysis

The basis of all methods based on comparative analysis is the comparison of the main market characteristics and market parameters that actually took place during the period of the violation with those that took place:

Before the start and / or after the termination of the violation on the market in question;

In a different but comparable product and/or geographic market (at different times).

If there is a proper economic justification, different comparison standards (“before and after”, “on a different market”, etc.) can be combined with each other. The burden of proof that such a combined approach is reasonable rests with the party making the loss assessment.

The logic of comparative economic analysis is based on the fact that actual data in comparable markets or in the same market, but in a comparable situation (for example, in a different time interval) are used to conduct counterfactual analysis. The main requirement for the chosen comparison standard is that it should reasonably reflect the situation that hypothetically could take place in the market under study in the absence of a violation. This means that when conducting a comparative analysis, economic factors that could cause a difference in the studied indicators (prices, market shares, profitability, etc.) should be taken into account in an appropriate way if the violation did not occur.

The approaches described below are not exhaustive and may also complement each other. Approaches to assessing losses differ in the complexity of their application, in the requirements for the data necessary for the analysis, and in the assumptions used. Accordingly, in many cases there is no single “best” approach.

If a number of approaches are used to estimate losses, and all of them lead to similar results, then it can be assumed that such an estimate is relatively more reliable. If different approaches lead to significantly different results, it is required to analyze the reasons for the differences and choose the assessment that is the most reasonable.

Analysis "before and after"

If the economic indicators (prices, market shares, profitability, etc.) that preceded the period of violation are known, then it is reasonable to expect that, all other things being equal, they would have remained at the same level in the absence of a violation. At the same time, if a certain dynamics of indicators was observed (for example, an increase or decrease in prices before the violation), then it is reasonable to expect that the same dynamics would have continued during the period of the violation itself (if there had been no violation). Thus, in order to calculate hypothetical indicators that would have occurred in the absence of a violation, a forecast is built on the basis of past indicators and assumptions about their dynamics. This approach is called data extrapolation.

If economic indicators (prices, market shares, profitability levels, etc.) are known that took place both before and after the period of violation, then, other things being equal, we can expect that in the absence of a violation, these indicators would change gradually, starting from the level preceding the violation, and ending with the level established after the end of the violation. This approach to constructing hypothetical indicators is called data interpolation.

The simplest variant of interpolation is linear interpolation, which assumes that the parameters under study, in the absence of a violation, increase or decrease by the same amount in each period of time. An alternative option is exponential interpolation, which assumes a constant growth (decrease) rate of the indicator under study.

Extrapolation and interpolation of prices

The left graph shows the situation when price fixing took place in 2010-2014. At the same time, there are no data on prices that were established in the market after the end of the price collusion. Given that in 2005-2009. prices were relatively constant (at the level of 9–11 rubles/unit), the average price level can be taken as the hypothetical price that would have been established in the absence of a violation (for example, 10 rubles/unit). The right graph shows the situation with price fixing that took place from the beginning of 2008 to the end of 2011. In this case, both data on prices prior to the violation and data on prices that were established after the end of the violation are available. Given the relatively higher price level in 2012-2014. it is assumed that in the absence of violations, the price would gradually increase from 10 to 12 rubles per unit.

When comparing the studied indicators during the disturbance period with previous or subsequent periods, extrapolation and interpolation methods need to be supplemented by an analysis of the factors that cause (seasonal) changes in demand and costs. If the main factors of production are traded in competitive markets, and there are exchange or over-the-counter indicators of prices for these factors of production, then these factors should be taken into account when extrapolating or interpolating data, thereby improving the estimate of loss.

Also, when choosing data for analysis, it is necessary to take into account economic factors that can affect the reliability of the data. For example, if the disruption occurred over a long period of time, then the price level prior to the disruption period may not be relevant for estimating subsequent periods because consumer preferences, costs, and other market and competitive parameters may have changed significantly over time.

The economic indicators established after the violation may be either higher or lower than those economic indicators that would have developed in the same period, but in the absence of a previous violation. For example, if there was a cartel agreement on the establishment and maintenance of prices at a certain level, then after its termination, one can expect fiercer price competition and, accordingly, a relatively lower price level than if there was no collusion at all. Conversely, when colluding, economic entities could communicate confidential information to each other (for example, about their own costs), knowledge of which could lead to relatively higher prices even after the end of the collusion. All of these aspects can affect the estimate of loss and should be taken into account in the calculation accordingly.

Comparable market analysis

The studied economic indicators (prices, market shares, profitability, etc.) can also be compared with similar indicators in comparable product markets. A comparable product market can be:

The market of the studied product (service), but with other geographical boundaries;

The market of another product (service), comparable to the market under study in terms of the number and nature of buyers and sellers, the conditions for the circulation of goods and the conditions for access to the market, government regulation.

The choice of method of comparison in practice depends on the availability of relevant data, on the existence of supposedly comparable markets, on the degree of comparability and on other circumstances of the case. For example, if there is an assumption that demand in the target market has changed significantly during the disruption period, but detailed demand data are not available, then any comparison without taking into account demand fluctuations will be unreliable. In this case, comparison with similar indicators in a comparable product market subject to similar fluctuations in demand will be more preferable.

When comparing economic performance in the target market during the disruption period with similar performance in other, presumably comparable product markets, certain basic criteria must be met. First, markets should be comparable both in terms of demand (the level of bargaining power of consumers, their preferences, ability to pay, etc.) and in terms of supply (costs, tariffs, markups, etc.). Second, there must be comparability in terms of market/industry structure and degree of competition. In the event that the breach took place in a highly concentrated market, it would be erroneous to draw comparisons with some highly competitive market, even if the markets are otherwise comparable. Such a comparison will result in a re-estimation of the actual loss (see below "Method of differences").

It is important to note that the more comparable the commodity market chosen for comparison, the more accurate the loss estimate may appear (ceteris paribus). However, a higher level of interchangeability on the demand side between closer product markets can also be expected. As a consequence, if there is a high degree of fungibility between the (comparable) markets under consideration, the loss estimate may be distorted.

As an example, suppose that in one market there was a violation that led to unreasonably high prices. Then it is logical to expect that a part of consumers will switch to a comparable product market, which in turn will lead to an increase in demand and an increase in prices in a comparable product market. As a result, loss estimates based on price comparisons between the two markets would be understated and should be considered conservative. Of course, this should not serve as an obstacle to the recovery of damages if it is calculated by the injured person in this way, since this approach does not violate the interests of the defendant.

Analytical (Econometric) Methods Used for Comparable Market Analysis and Before and After Analysis

In addition to calculating simple averages, or extrapolating or interpolating data, econometric methods can also be used to conduct comparative analysis. Their use simplifies the analysis when there are several variables that simultaneously affect the economic indicators under consideration. In the case of price analysis, and if the final price depends on several factors of production, then it will be necessary to assess how a change in prices for these factors of production is reflected in the price of the final product in the absence of a violation. Standard regression analysis allows such an estimate to be made from pre-disruption prices or from prices in comparable commodity markets.

The use of econometric methods allows to take into account random fluctuations in prices or other economic indicators that are not explained by the available data. Accounting for these fluctuations makes it possible to assess the reliability of the estimate of the amount of loss. In other words, one can not only estimate the expected loss in X rubles, but it can be argued that with a certain probability the loss amounted to from Y to Z rubles.

It must be emphasized that comparable markets are never exactly identical. These differences need to be properly taken into account when assessing losses. To do this, it is possible to use approaches in which comparative analysis over time and comparative analysis with other commodity markets complement each other.

For example, by comparing economic performance in the market in question prior to the disruption period with economic performance in a comparable product market, one can establish the relative difference in these performance between the two markets. In some cases, it can be expected that the difference in the indicators under consideration would prevail under normal conditions if there was no violation. Accordingly, taking the value of the economic indicator in a comparable commodity market during the period of violation as a basis, and adding the indicated difference, one can find the value of the economic indicator that would have been established in the market under study in the absence of a violation.

Since in this case the analysis is carried out not of the actual economic indicators, but of the differences between them, this approach is often referred to as the difference method. This analysis takes into account general changes in costs or demand between markets over time. The difference method can be applied with varying degrees of complexity, including using econometric tools.

difference method

There are 3 economic entities operating in region A. Since the beginning of 2008, these economic entities entered into a price cartel agreement, which led to an increase in prices for a certain product. The collusion was terminated by the end of 2012, when, at the request of the buyers, the Federal Antimonopoly Service began considering a case on violation of part 1 of article 11 of the Law on Protection of Competition in relation to these business entities. The same product is being sold in neighboring region B, which was not affected by price fixing. Consumer demand in region B is comparable to demand in region A, and producers face identical production costs. However, 10 business entities operate in Region B. Prices in region B, as a result of stronger competition, are lower than prices in region A, regardless of the presence or absence of a price cartel agreement in region A. Accordingly, if we directly take prices in a comparable product market in region B as hypothetical prices that would be formed in 2008-2012 in region A in the absence of a violation, then the assessment of consumer losses caused by the violation will be significantly overestimated. Prices in regions A and B had the same dynamics in 2005-2007. with the only difference that prices in region A were 2 rubles higher than those in region B. It is reasonable to assume that this dependence would not have changed in 2008-2012. in the absence of price collusion. Accordingly, the price of region B can be taken as the counterfactual price of region A, adding 2 rubles per unit to it. to account for differences in the number of economic entities and the level of competition between the two regions.

2.2.2. Economic and financial modeling

Counterfactual analysis can also be carried out on the basis of economic and financial modeling. These methods are discussed in more detail below.

financial modeling

Financial modeling is based on an estimate of the rate of return and other financial indicators. For example, if we are talking about price analysis, then the price can be considered as the sum of the costs (cost) of production and the corresponding trade margin. The calculation of the prices that would have been in the absence of the breach then requires an estimate of the cost of production and the trade margin that the affected person could realistically expect to receive under normal market conditions.

When estimating the cost of production, the starting point can be taken from the actual cost during the disruption period. However, it is important to understand that the actual cost may be higher than what would have been in the absence of a breach.

For example, due to the conclusion of a price cartel agreement, economic entities have reduced incentives for efficient production, which, other things being equal, can lead to higher costs. In addition, in order to maintain price collusion, economic entities may deliberately limit their own capacity, which can lead to higher costs in case of reduced returns to scale. Accordingly, this estimate of loss should be considered conservative. This estimate can be improved based on a more detailed analysis of how the violation affected the cost of the product (service) in question.

After the counterfactual level of cost is established, it is required to determine the size of the trade margin, which would take place in the absence of a violation. This estimate can be obtained using a comparative economic analysis. So, as a competitive trade margin, it is possible, if there is a proper justification, to take the trade margin that has developed in comparable commodity markets or was available in this market, but before the period of violation.

economic modeling

To estimate a hypothetical price or other economic parameters that would have developed in the absence of a violation, along with a comparative analysis, it is also possible to use economic and mathematical modeling based on the theory of industry markets.

Industrial market theory is a branch of economics that studies how economic entities set their prices and outputs, and how they make decisions to enter or exit a market depending on the characteristics of the competitive environment. Among other things, such economic characteristics include: the number of market participants, the level of demand for the product (service) in question, the level of costs, possible restrictions on production capacities, the pricing method (tenders, retail sales, etc.), whether the product in question ( service) homogeneous or differentiated.

The behavior of economic entities in a market with known characteristics is further predicted on the basis of game-theoretic models, where each economic entity not only optimizes its own profit, but also takes into account how its actions will affect the actions of its competitors. In the general case, economic modeling consists of the following steps: 1) choosing an economic model that corresponds to the nature and characteristics of competition in the market under consideration, 2) calibrating the model parameters, 3) testing the reliability of the model.

The choice of model is determined by many factors. The main ones primarily include the following: the number of economic entities, the degree of homogeneity of the product (service), the presence of capacity restrictions, barriers to entry into the market, and whether one of the economic entities is a clear leader in the market. But many other factors—for example, the costs that buyers incur when switching from one seller to another, or the importance of non-price competitive mechanisms (for example, the quality of the goods or services concerned)—can also decisively influence the choice of model. Other things being equal, preference should be given to those models that have received more extensive discussion and testing in the academic literature.

Model parameters can be calibrated in various ways. Some of the data may be publicly available, for example, data on production capacity may be available in the annual reports of companies to their shareholders. Other data, such as production costs per unit of output, may be available from business entities' internal accounting records. When such data are not available, similar data from comparable markets can be used. Estimating some of the model parameters, such as elasticity of demand, may require a separate econometric study. Expert estimates of the model parameters may also be acceptable if there is an appropriate justification.

Before proceeding to predict prices or other economic indicators that would have occurred in the absence of a violation, the predictive power of the model must be tested on actual data. To test the model, both the market situation before the violation and the situation during the violation can be used. In the latter case, if we are talking about a price cartel agreement, all participants in the agreement can be considered as a single economic entity that optimizes the total profit of all cartel participants. If the model does not predict (describe) the market situation well before (during) the disruption or in comparable markets, then there is no reason to believe that the model is suitable for predicting counterfactual prices or other economic indicators that would have occurred in the absence of a violation. Such models may not be reliable.

In addition, to assess the significance of the assumptions of the model, it is reasonable to assess the sensitivity of the results to these assumptions. For example, if, with a slight change in some initial parameters, the model predicts significant differences in prices, production volumes and other indicators that are the subject of analysis, then the validity of such a model can also be doubted. This, in particular, is explained by the fact that many of the initial parameters included in economic models are in themselves estimates and, therefore, some variation in their level is expected. However, if such a variation leads to a significant variation in the prices, production volumes and other indicators predicted by the model, then such a model may not be reliable for the purposes of counterfactual analysis.

Two basic economic models are widely used: the Cournot model and the Bertrand model. A detailed description of these models is beyond the scope of this document, but can be found in any basic textbook on microeconomic theory or the theory of industrial markets. These models are not always directly applicable, but often serve as a starting point for more detailed studies.

The Cournot model assumes that economic entities first choose the volumes of production, and then supply all their manufactured products to the market. It is also assumed that a single equilibrium price is established in the market. The Cournot model well describes markets for homogeneous products, where manufactured products are sold at auction or on the exchange, for example, markets for metals or agricultural products.

The Bertrand model assumes that business entities first choose prices for their products, and then produce them in the volume requested at these prices. The Bertrand model well describes markets for differentiated goods, where each product has its own price, and where economic entities can meet additional demand for their products relatively quickly (there are no capacity restrictions). Examples of such markets are some of the markets for computer or home appliances. When calibrating the Bertrand model, it is required to measure the degree of interchangeability between all considered products within the same market (ie for any pair of brands or models of computer equipment).

Finally, it is worth noting that both the Cournot model and the Bertrand model assume the presence of high barriers to entry into the market (entry into the industry under consideration). If barriers are relatively low, then anti-competitive price increases will naturally attract new producers. In this case, the behavior of economic entities will be obviously inadequately described by these models, since they take into account the actions of existing market participants, but do not take into account the competitive pressure from potential participants.

The main advantage of the economic modeling method is that it can give a more accurate assessment of the indicators under study and, accordingly, a more accurate assessment of losses, since the behavioral aspects of economic entities are explicitly taken into account (since they are “embedded” in the corresponding model) . On the other hand, the downside is that economic modeling requires more stringent assumptions than comparative analysis requires (for example, model parameters need to be calibrated, assumptions about the rational behavior of economic entities, etc.) must be accepted. If the prerequisites and assumptions on which this or that model is built are not met (not implemented in practice), then the results of economic modeling may be erroneous. However, the use of additional assumptions sometimes makes it possible to apply economic modeling even in cases where comparative analysis is not possible due to the lack of comparable markets or representative prices in the period before or after the violation.

2.3. Sources of information for counterfactual analysis

Any objective source of information may be used to conduct a loss analysis. These include (but are not exhaustive) such as the following:

Official statistical data, information received from antimonopoly, tax, customs and other state bodies.

Internal documents of companies, including financial statements, own marketing research, expert assessments.

Market and marketing research conducted by third parties (relevant specialized organizations).

Expert assessments and studies of public authorities (ministries, departments, industry regulators, etc.).

Data from departmental and independent information centers and services, mass media.

No single source of information can be listed as a priority, and the choice of specific sources will depend on the circumstances of the particular case. The burden of proving the validity of the relevant sources, as well as the reliability of the subsequent analysis, rests with the party carrying out the assessment of losses.

If there are documents in the case file indicating the amount of price increases by the cartel, etc., such documents can also be used to directly assess the damages. For example, if there is correspondence between the economic entities involved in the price fixing, which stipulates how much it was supposed to raise prices, this information can be directly used to assess the losses caused by inflated prices.

However, even in such exceptional cases, it is usually impossible to correctly determine the amount of losses without additional economic analysis. For example, an economic analysis will still be required to assess the loss caused by lost volumes, as well as to assess the effect of cost pass-through.

3. Calculations of losses caused by the establishment (maintenance) of unreasonably high prices

3.1. Introduction

Such violations primarily include anti-competitive horizontal agreements (cartels) and the setting of monopoly high prices. It is important to emphasize that this category includes not only anti-competitive agreements (actions) directly aimed at increasing prices, but also any anti-competitive agreements (actions) that actually lead to this effect. For example, if there was a cartel agreement on the division of the commodity market, and it was appropriately proven that its negative consequences were expressed in price increases, then such a violation also belongs to this category.

Calculations of losses caused by these violations can be carried out both for direct purchasers of the goods (services) in question, and for purchasers of goods (services) in the relevant downstream markets. The lower redistribution market is the market for products (goods, services) produced from the products of the market in question (i.e., for which the products of the market in question serve as raw materials). Markets where the product in question is resold under new conditions (for example, wholesale purchases are resold at retail) are also downstream markets. Similarly, the upstream market is the market for products that are either used as raw materials for the production of products in the market in question or resold in the market in question.

3.2. Calculation of losses for direct purchasers of the goods (services) in question

Indeed, the producers of product B could earn no more than 10 billion rubles. per year due to their price collusion: they sold 5 million tons with an extra charge of 2 thousand rubles. per ton, plus they probably lost some profit due to reduced demand for their products. At the same time, the losses of JSC "Company 1" amount to 16 billion rubles. Despite the fact that the losses of JSC "Company 1" significantly exceed the illegal profits of the producers of product B, the latter must fully compensate for this loss.

Consider also an example of calculating losses (financial losses) for a situation with the establishment of a monopoly high price:

JSC "Company 1" is engaged in the production of goods A. At the same time, in the process of production of this product, JSC "Company 1" is forced to use the services of JSC "Carrier", which occupies a dominant position in the local market for freight transportation services. Initially, the cost of goods A produced by JSC "Company 1" was = 15 thousand rubles / unit. and the selling price - = 23 thousand rubles / unit. Annual sales were = 5 million units. With such indicators, the annual profit of JSC "Company 1" amounted to 40 billion rubles: annual profit = = (23 thousand - 15 thousand) * 5 million units. = 40 billion rubles. On November 1, 2013 JSC "Carrier" increased the price for freight transportation. At the same time, it was found that this price exceeds the amount of expenses and profits necessary for the implementation of freight transportation services, as well as the price that has formed in a comparable market, that is, this price is monopoly high. As a result of the increase in the cost of freight transportation, the cost of goods A increased by 1800 rubles. per unit and amounted to = 16.8 thousand rubles / unit. In this regard, JSC "Company 1" raised the selling price by 800 rubles, the new price was = 23.8 thousand rubles / unit. “Cost transfer” amounted to 44.4%: of the 1800 rubles attributable to the increase in cost, the company shifted 800 rubles to consumers. As a result of raising the selling price, the demand for product A decreased from 5 million units per year to P2 = 4, 5 million units per year. New profit amounted to 31.5 billion rubles. Thus, the total amount of financial losses of JSC "Company 1" is 8.5 billion rubles. This amount can be decomposed into three components as follows. 1) Taking into account the increase in the cost of one unit of product A by 1800 rubles, the financial losses of JSC "Company 1" as a result of overpricing for freight transportation amounted to 8.1 billion rubles: = (16.8 thousand rubles - 15 thousand rubles). rub.) * 4.5 million units. = 8.1 billion rubles. As stated earlier, this amount is subject to recovery by the injured party (JSC "Company 1") from the offender (JSC "Carrier") in order to apply the consequences of the invalidity of the terms of the contract of carriage on the price and recalculate the price of the carrier's services based on its economically justified value. 2) The increase in own prices led to a decrease in sales volumes of JSC "Company 1" of goods A in the amount of 0.5 million units. In the absence of a violation by JSC "Carrier", JSC "Company 1" could produce these 0.5 million units at a cost of 15 thousand rubles / unit. and sell them at a price of 23 thousand rubles / unit, thereby receiving 4 billion rubles. This amount represents losses from lost volumes. However, simultaneously with the decrease in profits associated with a decrease in sales volumes, JSC "Company 1" also received additional income from the increase in the selling price of product A. As noted above, the increase in selling prices for product A amounted to 44.4% of the increase in its cost. Accordingly, the additional income of JSC "Company 1" from the sale of goods at an increased price amounted to 8.1 billion rubles. x 44.4% = 3.6 billion rubles This amount is recoverable as part of the claim for damages. Losses from lost volumes are subject to reduction by the amount of additional profit from an increase in the sale price of goods and will amount to 0.4 billion rubles.

3.4. Calculation of losses for consumers who are not direct purchasers of the goods (services) in question

3.4.1. Buyers who purchase the product (service) in question from competitors of violators

Sometimes a violation can lead to losses even for those consumers who bought goods not from the economic entities themselves that violated antitrust laws, but from their competitors. This can happen for several interrelated reasons.

First, according to the laws of economic theory, in any market, the prices of various economic entities are positively interconnected. This means that anti-competitive price increases by violators will be accompanied by some price increases by other market participants. Consumers who purchase goods (services) from infringing competitors will thus be forced to pay more for them than in the absence of infringement.

Secondly, as a result of an unjustified increase in prices, consumers of the product (service) in question will, to some extent, switch to competitive products from other manufacturers that did not participate in the violation. However, higher demand for competitors' products will lead to higher prices for these goods (services), which in turn will lead to losses for their consumers.

The assessment of losses for consumers in such cases is carried out in accordance with the general principles for calculating losses for direct buyers (see above).

3.4.2. Downstream Buyers (Indirect Buyers)

Establishing unreasonably high prices can lead to losses both for direct buyers of the goods (services) in question and for buyers in the downstream markets (indirect buyers) due to the effect of cost pass-through by direct buyers. The calculation of losses for economic entities in downstream markets is based on the same logic that underlies the calculation of losses for direct buyers (see above).

Consider the first example from . In connection with a cartel agreement on prices in the raw materials market, JSC "Company 1" was forced to raise its selling price for product A from = 59 thousand rubles/ton to = 60 thousand rubles/ton. Let's assume that JSC "Company 2" purchased product A from JSC "Company 1" with the aim of reselling it to a retail buyer. Initially, JSC "Company 2" sold the product at a retail price of RCC = 62 thousand rubles / ton, and the sales volume was 1 million tons. An increase in the wholesale price to 60 thousand rubles/ton led to an increase in the retail price to = 62.2 thousand rubles/ton (the pass-through effect was only 20% due to the high level of competition in the retail market). The volume of retail sales of JSC "Company 2" at the same time fell to 800 thousand tons. By analogy with the previous examples, the losses of JSC "Company 2" in this case amounted to 1,240 million rubles: 800 million rubles. - losses caused by inflated prices for raw materials of JSC "Company 2", of which 160 million were offset by the pass-through effect, and 600 million rubles. - losses caused by missed volumes. Thus, JSC Company 2, which purchases product A from JSC Company 1, can sue the suppliers of JSC Company 1 in the amount of 1,240 million rubles, since the latter’s price collusion led (indirectly) to increase prices for JSC "Company 2".

4. Calculations of losses caused by violations restricting access to the commodity market, removing economic entities from the market (reducing their market shares)

4.1. Introduction

In some cases, actions, agreements between economic entities and authorities may restrict access to the market for existing or potential competitors or be aimed at reducing the market share of competitors. Such cases include, for example, the setting of monopoly low prices, the conclusion of exclusive contracts with suppliers or buyers, the setting of unreasonably high prices in the upper redistribution market, the sale of a combined set of goods or services, the imposition of unfavorable contract terms on counterparties, unfair competition, etc.

The losses caused by such violations are primarily borne by the existing competitors of the economic entity or entities in question. In addition, potential competitors may also incur losses if they planned to enter the market, but were forced to cancel it due to competition restrictions. Finally, buyers of the product or service in question may also suffer losses.

This section is structured as follows. The assessment of losses of economic entities already present on the market at the time of the violation is considered in. Estimation of losses of economic entities that planned to enter the market, but could not do so due to illegal restriction of competition, is considered in. dedicated to the loss of buyers.

4.2. Estimating losses for existing competitors

The effects of restricting competition on existing competitors can manifest themselves in different ways. For example, entering into an exclusive contract with one distributor may increase costs for other distributors by weakening their competitive position. The establishment of monopolistically low prices by a dominant entity can lead to a decrease in the revenue of its competitors and their inability to cover their production costs. In both cases, the profitability of the affected person may decrease, its market share may decrease, and, possibly, the affected person may leave this market in principle. The negative effect of reduced profitability (profitability) can be exacerbated by the loss of returns to scale or network effects.

When calculating losses for existing competitors, it is necessary to answer the following questions:

To what extent were the revenue, profit, market share and other indicators of the financial performance of the affected party underestimated as a result of the breach?

What would be the costs, revenues, profits and other indicators of the financial performance of the injured party if the violation had not occurred?

The answers to these questions allow for a counterfactual analysis. All methods discussed in (comparative economic analysis, financial and economic modeling) can be used for this purpose. For example, an analysis of the victim's market share in the pre-infringement period may allow calculation of the market share that the injured person would have had in the future in the absence of the violation, or its profit. As in other cases of loss assessment, the simultaneous use of several methods improves the reliability of the assessment.

Additional significance for counterfactual analysis is acquired by internal marketing research or commercial plans of economic entities. The relevant internal documents of companies, if they were prepared in the period before the violation, may contain objective forecasts for the development of market shares or for the profitability of business entities. For example, if there is evidence that an entity planned investments to expand capacity and increase production, but was forced to cancel or postpone these plans as a result of unlawful restrictions on competition by other market participants or authorities, then this information should be properly taken into account when carrying out counterfactual analysis.

According to the results of counterfactual analysis, losses can be defined as the difference between the actual financial condition (market position) of the affected economic entities and that which could have occurred in the absence of competition restrictions. The choice of a specific indicator (indicator) of economic activity for assessing losses may be dictated by the specifics of the situation under consideration and should be appropriately justified by the party carrying out the assessment of losses. Thus, if estimating revenue is not possible, and if the breach resulted in increased costs in the first place, then a rough estimate of the loss can be obtained by considering costs alone, without taking into account revenue. Conversely, if the breach caused revenue to fall in the first place, and if a reliable estimate of costs is for some reason impossible, then an analysis of revenue alone, without taking into account costs, may be acceptable.

It is important to note that the restriction of competition can have long-term consequences for competing economic entities if their market position has been significantly weakened. For this reason, the economic situation of these entities observed after a period of disruption is generally not indicative of the situation that would have occurred in the absence of disruption. Accordingly, when conducting a comparative analysis, it is preferable to use for comparison the period preceding the violation, and not the period after the end of the violation.

If the restriction of competition led to a decrease in the market share of an economic entity or otherwise weakened its market position, then the economic entity continues to incur losses after the end of the violation. Namely, the profit that the economic entity receives after the end of the violation will be less than the profit that he could count on if there were no violation at all. These losses will also constitute the loss of profit of the injured person, subject to compensation.

Finally, when calculating the total losses for a number of periods, these losses must take into account the lost business and investment opportunities of the affected person.

To illustrate the basic principles of calculating losses caused to existing competitors, consider the following example.

Unjustified refusal to supply the resource JSC "Company A" is a vertically integrated company that produces intermediate product 1 and final product 2. JSC "Company A" is a monopolist in the market for product 1. The market for product 2 is competitive, and the main competitor of JSC "Company A" is JSC "Company B". JSC "Company B" purchases product 1, necessary for the production of product 2, from JSC "Company A".

Starting from 2011, JSC "Company A" unreasonably reduced the supply of product 1 to JSC "Company B". This reduction in supply led to a reduction in the market share of JSC "Company B" in the product 2 market from 20% to 10% (see the diagram below, left side). In turn, the loss of market share led to a proportional decrease in profits (right side of the diagram) .

JSC "Company B" filed a complaint with the Federal Antimonopoly Service of Russia. As a result, JSC Company A was found to have violated antitrust laws, after which it resumed deliveries of product 1 to JSC Company B in 2012. The affected person expects that its market share and profit will return to the previous level no earlier than the first half of 2014 The lost profits, both past and future, that Company B JSC would have received in the absence of a violation are shaded in white in the diagram, as the difference between counterfactual and actual profit. Counterfactual profits should include, if justified, income from the reasonable economic use of the company's free cash, for example, income from the reinvestment of these funds in production. JSC "Company B" may file a claim for reimbursement of all specified lost profits. The burden of proof that, in the absence of the disruption, market share and profit would have remained at their previous level, and that these indicators will fully recover in 2014, lies with JSC "Company B".

4.2.1. Estimation of losses of competitors from unfair competition

No less damage than monopolistic activity can be caused by unfair competition - abuses from which more and more companies and entrepreneurs suffer today, no matter what business they are engaged in.

In particular, situations are common in practice when, when providing similar services, the infringer illegally uses a trademark, service mark, trade name, commercial designation, etc., confusingly similar to a means of individualization registered for a competitor.

In addition to being misleading to service consumers, such actions can cause significant damage to the offender's competitor.

Anti-competitive actions can have a negative impact not only on existing, but also on potential competitors. Typically, such situations arise when the entry of potential competitors into the market has been hindered or prevented due to a breach. The basis for compensation for damages to a potential competitor should be, among other things, proof that he not only planned (including made or began to make the relevant preparations), but could also successfully enter the market in the absence of a violation.

To assess the losses of potential competitors, the same methods are used as to assess the losses of existing competitors, but with the following exception. When calculating the losses of potential competitors, comparison with the periods before and after the violation is not possible, since these competitors were not on the market either before or after the violation. However, as in the case of existing competitors, comparative analysis of comparable markets, as well as financial or economic modeling, can be used to calculate the losses of potential competitors. For example, the basis of financial modeling could be a potential competitor's business plan that estimated the expected revenue and costs of entering the market in question, if that business plan was prepared before the breach.

Lack of data, for example in terms of comparable markets suitable for analysis, may be an obstacle to estimating the full amount of loss (eg lost profits). In such cases, an economic entity may choose to file a claim aimed only at redressing the real damages associated with preparations for entering the market. For example, if a potential competitor incurred investment costs (made capital investments), but was unable to enter the market due to limited competition, then he may choose to sue the infringer only for the amount of these investment costs. However, the burden of proving that such an approach is economically justified and that the investment would have paid off in full in the absence of a violation lies with the injured person.

To illustrate the basic principles of calculating losses caused to potential competitors, consider the following example.

Creating barriers to entry into the market One business entity, JSC "Company A", operated on the market of product 1. Additionally, JSC "Company B" considered the feasibility of entering this market. By order of JSC “Company B”, a business plan was prepared for entering the market with the following main conclusions.
	Category of income/expenses	Net current (discounted) value of planned income/expenses
	Capital investments (investments)	(10 billion rubles)
	Production costs (cost minus capital costs)	(5 billion rubles)
	Expected revenue	17 billion rubles
	Expected profit	2 billion rubles
JSC "Company B" decided to enter the market and start construction of a new plant. The construction was completed in 2010 and cost JSC "Company B" 10 billion rubles. As soon as the construction of the plant was completed and JSC "Company B" was ready to begin deliveries of product 1, JSC "Company A" set prices for its products below the cost of production. The monopoly low prices of JSC "Company A" led to the fact that JSC "Company B" was forced to cancel its entry into the market. The actions of JSC "Company A" were recognized as illegal, contrary to antimonopoly law in 2013. By that time, JSC "Company B" sold the new plant to third parties for 7 billion rubles. Accordingly, JSC "Company B" suffered actual losses in the amount of 3 billion rubles, caused by the restriction of its ability to enter the market. JSC "Company B" may bring a claim for the full amount of these losses. At the same time, the burden of proof is that, in the absence of a violation, an investment of 10 billion rubles. fully paid off would be borne by the plaintiff. It appears that this estimate of losses is conservative, as JSC Company B also incurred losses in the form of lost profits from the sale of the product (2 billion rubles), as well as in the form of lost commercial and investment opportunities in 2010-2013 .

4.4. Estimating losses for buyers

The ultimate goal of restricting competition is to increase or increase market power. Consequently, in the long run, the restriction of competition can lead either to higher prices or to reduced availability, lower quality of goods and services. Accordingly, the restriction of competition may lead to infringement of the interests of consumers of the goods (services) in question. Along with existing and potential competitors of the infringer, buyers also have the right to compensation for the losses caused to them.

At the same time, restriction of competition can lead to losses for buyers, both from the moment the violation begins and later. Namely, situations are possible when buyers initially benefit as a result of a violation, but incur losses in the future. Thus, if a dominant economic entity sets monopolistically low prices in order to force competitors out of the market and subsequently set monopolistically high prices, buyers will initially gain, but then suffer losses.

If the losses of buyers, which they incur as a result of the restriction of competition, are caused by unreasonably high prices, then the assessment of losses is carried out in accordance with the methods discussed in. Restriction of competition may also lead to a reduction in the availability of goods and services or a decrease in their quality, which can cause losses to consumers of the goods and services concerned. To the extent that this characteristic can be objectively quantified, the general methods for calculating damages described in will be applicable in this case.

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*(1) A practical guide to assessing damages in claims for damages caused by breaches of Articles 101 or 102 of the Treaty on the Functioning of the EU.

*(2) In foreign terminology - Pass-on. The protection of the offender, based on references to the transfer of costs by the injured person, is called Pass-on defense.

*(3) In English literature and practice, the term free cash flow is used.

*(4) In order to assess the legitimacy of using certain standards for comparison or comparability of selected markets, it is necessary to use the principles that underlie the criterion of market comparability in paragraph 1 of Article 6 of the Law. In particular, the structure of the market, the level of costs, the conditions for the circulation of goods, competition, barriers to entry into the market, the regulatory environment, etc.

*(5) A detailed description of the principles of regression analysis is beyond the scope of this document. Basic information about econometrics can be gleaned from the following textbooks: J.M. Wooldridge Econometric Analysis of Cross Section and Panel Data, edition, MIT Press 2010, or Dougherty, C. Introduction to Econometrics. Second edition. M.: Infra-M., 2007.

*(6) In the English-language economic literature, the term difference in difference analysis is used.

*(7) In the English-language economic literature, the term economies of scale is used. The scale effect is understood as a situation when the average cost of producing a good (service) decreases with an increase in the volume of production. Accordingly, the greater the volume of sales, the cheaper the production of one unit of goods (services).

*(8) In the English-language economic literature, the term simulation models is used.

*(9) A product is homogeneous if it practically does not differ from the technological point of view or from the point of view of consumers between different manufacturers. A product is called differentiable if there are significant qualitative differences between the offers of different manufacturers.

* (10) See, for example, J. Tyrol, Markets and market power: the theory of industrial organization, edited by V.M. Galperin and L.S. Tarasevich, St. Petersburg: School of Economics, 2000

*(11) In the English-language economic literature, the terms downstream and upstream are used, respectively.

*(12) In the English-language economic literature, the terms direct customers are used.

*(13) In the English-language economic literature, the terms overcharge effect, volume effect and pass-on effect are used, respectively.

*(14) See, for example, A. Mas-Colell, M.D. Whinston, J.R. Green, Microeconomic Theory, Oxford University Press, 1995, chapters 2 and 3.

*(15) In the English literature, the term deadweight loss is used.

*(16) In English literature, the term umbrella customers is used.

*(17) In the English-language economic literature, the terms bundling and tying are used.

*(18) In the English-language economic literature, the term economies of scale is used. The scale effect is understood as a situation when the average cost of producing a good (service) decreases with an increase in the volume of production. Accordingly, the greater the volume of sales, the cheaper the production of one unit of goods (services).

*(19) In the English-language economic literature, the term network effects is used. The network effect is understood as a situation where a product (service) is all the more valuable, the more users this product (service) has. Accordingly, profitability increases with the growth of market share. Conversely, a fall in market share leads to a fall in profitability.

*(20) In the given example comparison of the actual and counterfactual profit is put in an estimation of losses. Similar calculations can be made on the basis of the company's cash flows. Both approaches lead to the same results for loss estimation.

*(21) Approaches on calculation of counterfactual profit are considered in.

*(22) In the given example comparison of the actual and counterfactual profit is put in an estimation of losses. Similar calculations can be made on the basis of the company's cash flows. Both approaches lead to the same loss estimation results.

*(23) Approaches on calculation of counterfactual profit are considered in.

Document overview

The FAS Russia explains how to determine the amount of losses caused as a result of violation of the antimonopoly law. The clarifications summarize most of the existing methods for determining losses used both in Russian and foreign law enforcement practice.

The clarifications do not limit the list of acceptable methods for determining losses. They only contain information about the types of damages caused by violations of the antimonopoly law, and the applicable methods for their assessment and calculation.

The clarifications can be used by the antimonopoly authorities when considering cases of violations of the antimonopoly law, to determine the amount of damage caused, as a circumstance aggravating administrative liability, and can also be used by other persons when recovering losses in court or settling claims without a trial.

Attention is drawn to the fact that a claim for compensation for losses caused by anti-competitive action (inaction), the conclusion of an agreement that violates competition law or participation in it, the adoption of an anti-competitive act of an authority, can be filed by any person who believes that he has suffered losses as a result of this .

The types of monopolistic activity, along with the abuse by an economic entity, a dominant position in the market (Article 5), are traditionally recognized as the so-called horizontal And vertical agreements of business entities(v.6).

AMA generally distinguishes between horizontal and vertical mergers. A horizontal merger means the amalgamation of several previously independent firms belonging to the same industry. Such mergers are the most strictly regulated, as they involve a decrease in the number of competitors in the industry, which is identified with a decrease in competition.

A vertical merger is an association of firms that carry out successive stages of production and are therefore connected by a supplier-buyer relationship. In this case, there is no direct reduction in the number of competitors in any of the markets, but such mergers are usually limited. It is assumed that such forms of association help the "supplier" to exclude competition for the "buyer". Due to these differences between vertical and horizontal mergers, the attitude of regulators towards vertical mergers is somewhat more lenient.

By its legal nature, unfair competition, as well as monopolistic activity, is an offense.

Along with such traditional forms of unfair competition as "the dissemination of false, inaccurate or distorted information that can cause losses to another economic entity or damage its business reputation" or "sale, exchange or other introduction into circulation of goods with the illegal use of the results of intellectual activity and equated to them means of individualization of a legal entity, individualization of products, performance of works, services", Art. 10 forbids and " misleading consumers regarding the nature, method and place of manufacture, consumer properties, quality and quantity of the product or its manufacturers.

The Law “On Competition and Restriction of Monopolistic Activities in Commodity Markets” establishes that:

1) the actions of a firm occupying a dominant position in the market are prohibited if they result in a significant restriction of competition and infringement of the interests of other market participants, including individual citizens;

2) monopoly collusion on prices, withdrawal of goods from the market to maintain a shortage, division of the market, attempts to restrict access to the market of competing firms are prohibited;

3) firms engaged in unfair competition, in particular: disseminating false information about the goods and firms of their competitors in order to scare away buyers from them, are subject to punishment; deceiving buyers about the real properties and quality of their product; undeservedly belittling in their advertising the quality of their competitors' products; illegally using other people's names and trademarks for their products, as well as copying the shape, packaging and external design of their competitors' products; stealing from their competitors their commercial secrets, as well as technical, production and trade information;

4) control over the activities of monopolists is carried out by the State Committee for Antimonopoly Policy (Antimonopoly Committee);

5) in case of violation of the requirements of the law, the Antimonopoly Committee has the right to terminate any business contract, demand that the monopolist compensate for the losses caused by its actions, and also impose a fine on the guilty company in the amount of up to 1 million rubles.

Federal executive authorities are prohibited from adopting acts and taking actions aimed at:

The introduction of restrictions on the creation of new economic facilities, as well as the establishment of bans on the implementation of certain types of activities;

Establishment of prohibitions and other restrictions on the export and sale of goods from one region to another;

Issuance of instructions to business entities on the priority conclusion of contracts with a certain circle of buyers;

Provision of unreasonable privileges to individual economic entities, putting them in a privileged position in relation to other enterprises operating in this market.

In 1995, the Law on Competition was supplemented by Article 22.1. It provided that culpable wrongful acts that violate antitrust laws could result in civil, administrative or criminal liability.

As you know, the mandatory signs of any offense are public danger; wrongfulness; guilt and punishment and the absence of any of them precludes liability.

The current wording of the Law on Competition regulates the issues of collecting to the federal budget income received by business entities as a result of monopolistic activities and unfair competition (Article 23.1). For the first time, the issue of sources of compensation for losses caused by anti-competitive acts and actions of state authorities and local self-government bodies has been resolved. Art. 26 "Compensation for losses caused to business entities" states that "losses: caused as a result of illegal actions (inaction) of the federal executive body, state authority of a constituent entity of the Russian Federation, local self-government body: are subject to compensation by the Russian Federation, the relevant constituent entity of the Russian Federation or municipality".

One of the traditional ways to combat the most dangerous violations of the antimonopoly law is the forced separation (separation) of commercial organizations and non-profit organizations engaged in entrepreneurial activities (Article 19 of the Law).

As an example of the use of administrative means, article 19.8 of the Code of the Russian Federation on Administrative Offenses of December 30, 2001 N 195-FZ can be cited, which provides that:

“Failure to submit petitions, applications, data (information) to the antimonopoly body, to the body regulating natural monopolies; failure to submit to the federal antimonopoly body, its territorial bodies or to the body regulating natural monopolies, its territorial bodies petitions, applications, data (information) provided for by the antimonopoly legislation, or submission of deliberately false information - shall entail the imposition of an administrative fine on officials in the amount of twenty to fifty the minimum wage; for legal entities - from five hundred to five thousand times the minimum wage.

Responsibility for violation of competition is also provided for by the Criminal Code: “ Article 178 Prevention, restriction or elimination of competition

1. Prevention, restriction or elimination of competition by establishing or maintaining monopoly high or monopolistically low prices, dividing the market, restricting access to the market, removing other economic entities from it, establishing or maintaining uniform prices, if these acts have caused major damage, - shall be punishable by a fine in the amount up to 200 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to 18 months, or by arrest for a term of four to six months, or by deprivation of liberty for a term of up to two years.

Note. Major damage in this article is recognized as damage, the amount of which exceeds one million rubles.

Today, the Federal Antimonopoly Service (FAS) decided to change the antitrust laws. Moreover, both in terms of control and in terms of punishment. Penalties for violating antimonopoly legislation will be significantly increased, as well as proportionality of fines with the damage caused to citizens and business entities. In addition, the number of benefits and benefits provided to various companies will be minimized. They should be provided only if they do not lead to a weakening of competition.

FAS and MEDT (Ministry of Economic Development and Trade) are already preparing a draft of a new law "On Competition and Restriction of Monopoly Activities in Commodity Markets". He will enter the government in the fall. The law will be based on a new ideology - the transition from a permissive-preventive system to a control-notification system. Antimonopoly control will not prevent a particular company from developing (including through mergers) and conquering new markets. The main goal is to prevent this company from choking others.

The draft of the new law provides for a multiple increase in the cost threshold for transactions that require approval by the antimonopoly service. The threshold is raised 100 times - to about 1 billion rubles. This will remove a huge number of transactions that do not affect competition from preliminary control, and frees up resources to control transactions that affect competition.

Penalties for monopolistic activity are supposed to be calculated based not on the minimum wage (minimum wage), but on the annual turnover of companies. The punishment will be commensurate with the income from monopoly activities that the company received. Moreover, proving violations - say, price collusion in the form of cartel agreements - will become easier. FAS will not prove the very fact of a cartel agreement or price fixing. As a rule, no documents are signed in these situations. It will only be necessary to establish the fact of parallel economic behavior, that is, cases where, without economic justification, potential competitors simultaneously raise prices.

FAS promises that officials will not escape responsibility. Today, approximately 50% of all cases handled by the antimonopoly authorities are cases against governors, regional parliaments and executive authorities, who create administrative barriers that hinder the development of competition. After changes in the law, it will become dangerous to create greenhouse conditions for "one's own" companies by expelling others from the market.

Thus, the antitrust law will have to undergo significant changes, both through amendments and through the adoption of new laws. Today, the Government is looking for new reserves to ensure economic growth rates that will double GDP by 2010. Antimonopoly policy, if properly approached, can become a stimulus for the development of the economy and the market. Without competition in the broadest sense of the word, the task of doubling GDP will become very difficult.

Chapter 15. FINANCIAL LAW

Of course, such an approach strengthens the legal position of the plaintiff, since the fact of violation of the antimonopoly law will be confirmed by the decision of the competent authority.

Example 1. Decision of the Arbitration Court of Moscow dated February 19, 2013, decision of the Federal Arbitration Court of the Moscow District dated September 4, 2013 in case N A40-135137 / 2012 on the recovery of damages caused by violation of paragraphs 3, 10 of part 1 of Article 10 of the Law on Protection of Competition , illegal requirement to pay at the conclusion of the contract 10 000 000 RUB. and illegal termination of heat supply.

Example 2. The decision of the Arbitration Court of Moscow dated July 12, 2010 in case N A40-46424 / 10-59-378 on the recovery of damages (1,141,085,606.15 rubles) caused by a violation of clause 6 of part 1 of Article 10 of the Law on Protection competition.

As evidence of the defendant's abuse of a dominant position in the form of unreasonable setting for the plaintiff of a different (inflated) price for the goods compared to other consumers, the court accepted the written recommendations of the Federal Antimonopoly Service of Russia dated November 22, 2007 N IA / 22458 on pricing in relation to this product and the withdrawal of the FAS Russia on a court case, which expressed the position of the antimonopoly body on the value of the economically justified price for this product.

Example. Decision of the Arbitration Court of Moscow dated July 25, 2013, decision of the Ninth Arbitration Court of Appeal dated November 6, 2013 in case N A40-33952 / 2013 on the recovery of damages caused, according to the plaintiff's position, by the defendant's violation of paragraphs 6, 8 of part 1 of the article when selling goods 10 of the Competition Law.

At the same time, the legislation does not prevent the injured person from filing a claim for damages before or without the appropriate decision by the antimonopoly authority (the so-called "stand-alone" claims, according to foreign legal terminology).

Example. Decree of the Federal Arbitration Court of the Moscow District dated December 20, 2011 in case N A40-12966/2010.

In such cases, the antimonopoly body must be notified by the court of the commencement of the proceedings, and in the future, the status of the antimonopoly body as a participant in the process must be determined (paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30, 2008 N 30 "On Certain Issues Arising in Connection with application of antimonopoly law by arbitration courts).