Anti-competitive agreements in Russian courts (2008–2012): antitrust law implementation and interpretation
This article analyses antitrust enforcement practice in Russian courts in the area of competition-restricting agreements. The analysis is based on the court decision database of litigations with the Russian competition authority (the Federal Antimonopoly Service (FAS)). In the database litigations that officially started in the period 2008–2012 were included. Final court decisions were evaluated, taking into account litigation duration (sometimes up to 3 years). The database contains 400 cases, including 236 horizontal agreements and 164 other agreements (mostly vertical agreements). Based on the evidence of this database, important features and problems of the interpretation and implementation of competition law in Russia and priority areas of enforcement were identified. Antitrust policy was analysed taking into account the risks of type 1 and type 2 errors, including the problem of flexibility of prohibitions (per se vs Rule of reason (ROR) approaches), standards of proof and the problem of consistency of enforcement.
In developed competition jurisdictions, excessive pricing is more a subject of academic and expert discussions than an actively used instrument of competition enforcement. Russian competition enforcement is an exception in this regard. During the last ten years the Russian competition authority, the Federal Antirust Service (FAS), made several hundred decisions on the violation of rules prohibiting excessive pricing. The question remains whether Russian enforcement is consistent with international experiences, and which part of enforcement limits a positive welfare effect. To achieve this objective the article explains the targets of excessive price enforcement, the legal standard for excessive pricing, and remedies applied in Russian competition law. The main conclusion is that the selection of targets does not generally contradict the objectives of competition enforcement. There are clear theories of harm specifi c to two of the main target groups: dominant exporting companies that apply third-price discrimination in the domestic market vis-à-vis export markets, and dominant companies that increase prices after deregulation, in case there is no new entry. Standards for proving price excessiveness represent a questionable part of enforcement, and they oft en turn out to be weak under judicial review. The application of either lower or higher standards for establishing price excessiveness results in decreasing the deterrence effect. A fear of decreasing deterrence explains the recent shift from ex-post intervention to ex-ante price remedies.
As capitalism expands to new horizons, in an increasingly globalized and ever more digitalized economy, it is becoming even more important to find a right approach to regulate economic competition. Key questions of balancing incentives for innovation and capital investments on the one hand, and reducing negative externalities and mitigating some existential risks for society as a whole on the other, are clearly related to the competition law and policy domain. Competition is a fundamental element of the capitalist economic system, distinguishing it from the administrative centrally planned economy. However, in different structural settings and frameworks existing within the capitalist economy, competition could take different forms and modalities, changing in line with the transformations of the capitalist system itself. Transition to digital capitalism is clearly one of those paradigmatic shifts in economic life, which poses a certain adaptation challenge for the legal systems all around the world. In this context, a choice of forms and modalities of economic competition to be accepted and encouraged by laws, as well as accurate calibration of the legal tools to be used for this task become important policy challenges. Russia in this context represents an interesting case of experimentation with institutional designs and policy responses to these challenges as this jurisdiction already in a short period of time has been going through a number of changes in the way it approaches economic competition in the new economy. At both practical and legislative levels, the Russian jurisdiction is working at the cutting edge of the global digital agenda. A number of recent cases handled by the Russian competition authority (the Federal Antimonopoly Service, FAS) are not only making important developments in the Russian competition law practice but also contributing significantly to the global competition law and policy debate in terms of its adaptation to digital capitalism.
Global Competition Enforcement focuses on emerging economies and competition authorities’ experience and fosters diversity and inclusiveness that are the cornerstone of the United Nations’ mandate. In a short span of years, the landscape of global competition has changed significantly. In particular, international cooperation in competition law enforcement has greatly strengthened the battle against abuse of dominance, cartels, anticompetitive mergers and related political corruption. Digitalization opened a new era of competition law and policy. The digital economy entails new challenges to competition authorities worldwide which require greater cooperation efforts towards convergence and consistency. This thoroughly researched book explains the current situation regarding joint investigations, identifies common problems and considers possible solutions and future developments. In addition to covering issues of competition policy, its authors look in detail at practice in both merger and conduct investigations in a variety of countries.
The efficiency approach, as advocated by the Chicago School in particular, only provides a very narrow approach to competition law analysis that relies on the preferences of consumers. This approach remains especially insufficient for the regulation of firms that provide citizens with politically relevant news and information. In times of digitisation, citizens increasingly rely on news disseminated by Internet intermediaries such as Facebook, Twitter or Google for making political decisions. Such firms design their business models and their algorithms for selecting the news according to a purely economic rationale. Yet recent research indicates that dissemination of news through social platforms in particular has a negative impact on the democratic process by favouring the dissemination of false factual statements, fake news and unverifiable conspiracy theories within closed communities and, ultimately, leads to radicalisation and a division of society along political and ideological lines. Experience based on the Brexit referendum in the UK and the recent presidential elections in the US highlights the ability of populist political movements to abuse the business rationale of Internet intermediaries and the functioning of their algorithms in order to win popular votes with their ‘post-truth politics’. This article relies on competition law principles to discuss future approaches to regulating the market for political ideas at the interface of competition law and media law in the new digital age. Based on constitutional considerations the article rests on the assumption that media markets should not only provide news that responds best to the psychological predispositions and subjective beliefs of the individual citizen, but also provide correct information and diversity of opinion as a basis for making informed democratic decisions.
The article opens with a brief overview of the provisions of the Treaty on the Eurasian Economic Union (EAEU) establishing the general principles and rules of competition. It further presents a detailed analysis of the main features and characteristics of the EAEU competition law. Among the issues discussed in this article is the direct effect and direct applicability of the general rules of competition, the relation between EAEU and national competition law provisions as well as the division of competence between the Eurasian Economic Commission and national competition authorities. The relevant features and provisions of EAEU competition law, such as the notion of 'coordination of economic activity' are analysed through the prism of the EAEU Court's advisory opinions. The authors also use a comparative approach drawing parallels and underlining the differences with EU law and the case law of the Court of Justice of the European Union (CJEU). Finally, the authors also examine the mechanisms of judicial protection available under EAEU law to economic entities in the field of competition law.
Competition authorities around the world are trying to adjust antitrust enforcement to the new reality. Digitalization is of great interest to the Federal Antimonopoly Service of the Russian Federation (FAS Russia) and drives its practice and potential legislative initiatives. In this chapter, we analyze the enforcement practice with regards to one of the hot topics in the competition law and policy domain—the unsettled relations between algorithms and collusive market behavior. We try to look at this topic from both competition authorities and companies’ perspectives. While self-learning digital cartels are still a matter for the future, we focus on the current state of digital technologies’ application in facilitating bid-rigging and other forms of collusion.
Brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Contrary to the law's conception of trademarks, brands are used to indicate far more than source and/or quality. This volume begins the process of broadening the legal understanding of brands by explaining what brands are and how they function, how trademark and antitrust/competition law have misunderstood brands, and the implications of continuing to ignore the role brands play in business competition. This is the first book to engage with the topic from an interdisciplinary perspective, hence it will be a must-have for all those interested in the phenomenon of brands and how their function is recognized by the legal system. The book integrates both a competition and an intellectual property law dimension and explores the regulatory environment and case law in both Europe and the United States.
The paper explores how EU competition law has integrated so far the concept of brands in different areas of enforcement. Although EU competition law has engaged in multiple instances with branding and product differentiation, brands do not yet constitute an operational concept in EU competition law. This is due to an important uncertainty as to the normative choices that need to be made with regard to the relation between brands and the formation of consumer preferences. The concerns raised by retailer power and the development of private labels also indicate that the existing economic theory on product differentiation may not also provide a complete picture on the effects of brands on the competitive process and ultimately on consumers. Competition law will also need to tackle the issues raised by the development of ‘social branding’ and the dialogic interaction between brand owners and consumers in the constitution of their brand identity.