Actions and inactions that are contrary to antimonopoly legislation. Monopolistic activity. Presence of losses and their size

1. Monopolistic activity - actions (inaction) of business entities that are contrary to antimonopoly legislation, aimed at preventing, limiting or eliminating competition (Article 4 of the Competition Law).

Monopolistic activity is illegal behavior of subjects and is considered as an offense. To characterize the offense, the theory of law has developed a category of the legal composition of the offense, which should be disclosed in relation to monopolistic activity * (691).

The object of this offense is competitive legal relations protected by the norms of antimonopoly legislation. At the same time, unfair manifestations of competition are illegal and are not subject to legal protection.

From the objective side, monopolistic activity is characterized as an illegal act, expressed in active (action) or passive (inaction) behavior. The elements of this offense are formal, therefore, to bring the subject to justice, it is sufficient to establish the fact of illegality of behavior. But it should be taken into account that civil liability occurs only in the presence of harmful consequences and, accordingly, it is necessary to determine the causal relationship between the unlawful act and the harmful consequences.

The subjects of this offense are business entities and entities acting as groups of persons. Please note that as part of a group of persons, a person who is not an entrepreneur may be held liable.

The subjective side of monopolistic activity is manifested in the intentional form of guilt, since the legislative definition contains an indication of the direction (goal) of such illegal behavior * (692).

The basis for classifying monopolistic activities into types is different. Thus, depending on the number of participants, such activity manifests itself in individual or collective form; in addition, monopolistic activity can be of a contractual or non-contractual nature, based on the formalization of relations by agreement * (693).

The Competition Law establishes a ban on the abuse of a dominant position in the market by a business entity and on the conclusion (implementation) of competition-restricting agreements (concerted actions) by business entities. Essentially we are talking about individual and collective manifestations of monopolistic activity.

Article 5 of the Competition Law prohibits actions (inaction) of an economic entity (group of persons) occupying a dominant position, which have or may result in the prevention, restriction, elimination of competition and (or) infringement of the interests of other economic entities, including such actions ( inaction) as:

Removal of goods from circulation, the purpose or result of which is to create or maintain a shortage in the market or increase prices;

Imposing on the counterparty terms of the contract that are unfavorable for him or not related to the subject of the contract; unjustified refusal to conclude an agreement with individual buyers (customers) in the presence of the possibility of production or delivery of the relevant goods;

Creation of discriminatory conditions (obstacles) of access to the commodity market (exit from the market), discriminatory conditions of exchange, consumption, acquisition, production, sale of goods;

Violation of the pricing procedure established by regulatory enactments; establishing and maintaining monopolistic high (low) prices;

Reduction or cessation of production of goods for which there is demand or orders from consumers, if there is a break-even possibility of their production * (694).

When considering cases related to violation of Art. 5 of the Law on Competition, it is mandatory to establish the fact of the existence of a dominant position of an economic entity (group of persons) * (695). But it should be noted that maintaining a dominant position in itself is not anti-competitive; the fact of abuse of a dominant position is considered illegal.

Established Art. 5 of the Competition Law, the list of actions that constitute a violation of antimonopoly legislation is not exhaustive. For example, actions to impose a contract may be considered unlawful * (696). At the same time, in accordance with paragraph 2 of Art. 5 of the Law, these actions (inaction) of an economic entity in exceptional cases can be recognized as lawful if the economic entity proves that the positive effect of its actions, including in the socio-economic sphere, will exceed the negative consequences for the product market in question.

Article 6 of the Competition Law establishes a ban on concluding (implementing) agreements (concerted actions) (hereinafter referred to as agreements) * (697) that restrict competition. Such agreements can be concluded between business entities operating in the market of one product (horizontal or cartel agreements); it is also possible to conclude agreements between business entities that do not compete with each other in the relevant product market, receiving (potential acquirers) and providing (potential sellers) goods (vertical agreements).

Agreements limiting competition, which are concluded between business entities operating in the market for the same product (competing entities), have the greatest danger to the economy. Therefore, it seems completely justified that the ban on their conclusion is established regardless of the total share in the product market of the economic entities participating in them * (698). In contrast, the conclusion of vertical agreements is prohibited only for those economic entities whose total market share exceeds 35 percent.

Agreements between economic entities in exceptional cases may be recognized as legal if economic entities prove that the positive effect of their actions, including in the socio-economic sphere, will exceed the adverse consequences for the product market in question, or if the possibility of concluding such an agreement by economic entities is provided for by federal laws * (699).

It should be taken into account that in paragraph 1 of Art. 6 of the Law on Competition exhaustively defines the types of agreements concluded between competing business entities (horizontal agreements), the recognition of the legality of which is not provided for by law. Such agreements lead or may lead to:

To establish (maintain) prices (tariffs), discounts, surcharges (surcharges), markups;

Increasing, decreasing or maintaining prices at auctions and trades;

Division of the market according to a territorial principle, according to the volume of sales or purchases, according to the range of goods sold, or according to the circle of sellers or buyers (customers);

Restricting access to the market or eliminating other economic entities from it as sellers of certain goods or their buyers (customers);

Refusal to enter into contracts with certain sellers or buyers (customers).

The Competition Law prohibits coordination of business activities of commercial organizations that have or may result in a restriction of competition. Violation of these requirements is grounds for judicial liquidation of an organization that coordinates business activities at the request of the antimonopoly authority.

2. Restriction of competition by federal executive authorities, state authorities of constituent entities of the Russian Federation, local government bodies, other bodies or organizations vested with the functions or rights of these authorities (hereinafter referred to as authorities, other organizations).

The norms of antimonopoly legislation establish requirements directed not only to business entities, but also to government authorities and other organizations that allow anti-competitive manifestations in their activities. The form of such manifestations can be individual or collective (coordinated) * (700).

Individual anti-competitive manifestations in the activities of government bodies and other organizations are expressed in the adoption of acts * (701) and (or) the commission of actions that limit the independence of business entities, create discriminatory conditions for the activities of individual business entities, if such acts or actions have or may result in prevention, restriction, elimination of competition and infringement of the interests of business entities.

Article 7 of the Competition Law establishes an approximate list of anti-competitive acts (actions) of government authorities and other organizations. The direction of acts (actions) of this kind is different and may be associated with the introduction of restrictions on the creation of new business entities in any field of activity, the establishment of illegal requirements for the process of carrying out business activities, and the unjustified provision of benefits to individual business entities * (702). Such acts (actions) of authorities and other organizations are unlawful and are declared invalid by a court decision. The exception is decisions agreed with the antimonopoly authority on providing benefits and advantages to business entities.

The Competition Law also prohibits vesting authorities and other organizations with powers, the exercise of which has or may result in a restriction of competition. In addition, a ban has been established on combining the functions of government bodies and other organizations with the functions of economic entities * (703), vesting economic entities with the functions and rights of these bodies, except for cases provided for by legislative acts of the Russian Federation.

Collective forms of anti-competitive activity of authorities and other organizations are expressed in the conclusion of any form of agreements by authorities, other organizations among themselves or between them and an economic entity, as a result of which there is or may be the prevention, restriction, elimination of competition and infringement of the interests of economic entities.

An approximate list of such agreements is established in Art. 8 of the Competition Law. In particular, they lead or may lead to an increase, decrease or maintenance of prices (tariffs), division of the market on various grounds, restriction of access to the market or the elimination of economic entities from it. Agreements of this kind do not comply with antimonopoly legislation and are declared invalid by a court decision.

Norms Art. 9 of the Law on Competition regulates antimonopoly requirements for holding a competition for placing orders for the supply of goods, performance of work, provision of services for state needs and the needs of local government * (704). Violation of the established requirements is grounds for the court to declare the competition invalid.

If there are signs of violation of antimonopoly legislation, the Federal Antimonopoly Service (its territorial departments) initiates cases, based on the results of which they make decisions and issue orders * (705). The instructions are addressed to business entities or authorities, other organizations and are binding. It should be noted that the antimonopoly authority does not have the right to issue orders to cancel or amend acts of legislative bodies of the constituent entities of the Russian Federation that contradict antimonopoly legislation. Such acts are declared invalid based on a court decision.

Decisions or orders may be appealed within three months from the date of adoption or issuance of the decision or order. Filing an application suspends the execution of the decision and order of the antimonopoly body on the transfer to the federal budget of income received as a result of violation of antimonopoly legislation, on changing the conditions or on terminating contracts and other transactions, on concluding agreements with business entities for the duration of its consideration in court before the entry of the court decision into legal force.

The core of 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 activity, according to Art. 4 of the Law are actions (inactions) of business entities or federal executive authorities, executive authorities of constituent entities of the Russian Federation and local governments that are contrary to antimonopoly legislation, aimed at preventing, limiting or eliminating competition.

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

In paragraph 1 of Art. 5 of the Law establishes a general prohibition on the abuse of a dominant position in the market by a business entity (group of persons). This prohibition applies to actions that have or may result in restriction of competition and (or) infringement of the interests of other business entities or individuals. The dominant position is recognized as the position of an economic entity whose share in the market for a certain product (i.e., one that does not have a substitute or interchangeable goods) is 65% or more, except in cases where the economic entity proves that, despite exceeding the specified value, its position is not dominant in the market.

Approximate forms of manifestation of abuse of dominant position specified in Art. 5 of the Competition Law are as follows:

Removal of goods from circulation, the purpose or result of which is to create or maintain a shortage in the market or increase prices;

Imposing on the counterparty the terms of the agreement that are not beneficial to him or are not related to the subject of the agreement (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 enter into an agreement only subject to the inclusion of provisions relating to goods in which the counterparty (consumer) is not interested;

Creating obstacles to market access (exit from the market) for other economic entities;

Violations of the pricing procedure established by regulatory enactments;

Establishment of monopolistic high (low) prices;

Reduction or cessation of production of goods for which there is demand or orders from consumers if there is a break-even possibility of their production;

Unreasonable refusal to conclude an agreement with individual buyers (customers) when it is possible to produce 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 so-called horizontal (cartel) agreements, i.e. agreements between economic entities of the same level. Thus, agreements (concerted actions) reached in any form by competing economic entities (potential competitors) having a total market share of a certain product of more than 35% are prohibited and, in accordance with the established procedure, are declared invalid, in whole or in part, if such agreements may result in a restriction of competition .

Clause 2 of Art. 6 of the Law is devoted to vertical anti-competitive conspiracies. Thus, agreements (concerted actions) reached in any form between non-competing business entities, one of which occupies a dominant position, and the other is its supplier or buyer (customer), are prohibited, if such agreements (concerted actions) have or may result in a 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 a 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 Art. 7 of the Law, federal executive authorities, executive authorities of constituent entities of the Russian Federation and local self-government bodies are prohibited from adopting acts and (or) taking actions that limit the independence of economic entities, create discriminatory or, on the contrary, favorable conditions for the activities of individual economic entities, if such acts or actions have or may result in restriction of competition and (or) infringement of the interests of business entities or citizens.

When merging, creating, or accessing 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 incorporation of associations of commercial organizations, as well as commercial organizations themselves; 2) acquisition of certain blocks of shares (deposits, shares) in the authorized (share) capital of business entities; 3) liquidation and division (spin-off) of state and municipal unitary enterprises (if this leads to the emergence of an economic entity whose share in the relevant product market exceeds 35%); 4) receipt by one economic entity of fixed production assets and intangible assets of another economic entity; 5) acquisition by any person of rights allowing to determine the conditions for an economic entity to conduct its business activities; 6) intertwining directorates.

A necessary condition for applying to the antimonopoly authorities to obtain consent to the creation, reorganization and liquidation of commercial organizations is a certain total value of the assets of the founders, reorganized and liquidated enterprises (more than 100,000 minimum wages).

Approved by the protocol
Presidium of the FAS Russia
dated 10/11/2017 No. 20

Explanations on determining the amount of losses caused as a result of violation of antimonopoly legislation (hereinafter referred to as the Explanations) are given for the territorial bodies of the FAS Russia in order to form the position of the antimonopoly authority on issues related to determining the amount of losses caused as a result of violation of antimonopoly legislation in the event of involving a territorial body to participate in a case being considered in court.

Clarifications can also be used when considering cases of violation of antimonopoly legislation with a view to preventing, limiting, eliminating competition, establishing infringement of the interests of business entities in the field of business activity or an indefinite number of consumers in the abuse of a dominant position.

Likewise, the provisions of these Explanations can also be used by territorial bodies of the FAS Russia in order to determine the amount of damage caused by violations of antimonopoly legislation, as circumstances 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 Liability offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation)).

In addition, these Interpretations may assist affected persons and violators in determining damages caused by violation of antitrust laws when recovering them in court or settling claims without trial.

These Explanations summarize most of the existing methods for determining losses, formed based on the results of a study of both Russian law enforcement practice and foreign experience.

In particular, in the preparation of this document, we used methods for assessing losses 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” and which have found wide practical application in the courts of the countries - EU members.

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

Any method used, if it is justified and reasonable, can be used in determining the amount of damages along with the methods discussed in these Explanations.

It is also important to note that none of the methods for calculating losses presented in this document has a pre-emptive status. The priority of a particular technique is primarily dictated by the circumstances of a particular case, the amount and nature of the available data.

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

1. General Provisions

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

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

If abuse of a dominant position, unfair competition, cartel or other violations of antimonopoly legislation caused losses to anyone, the affected person(s) has the right to file a claim in court to recover them.

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

Protection of the rights of persons affected by violations of antimonopoly legislation is carried out according to the general rules of civil law. Consequently, the injured person has the right to use any methods 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 makes it possible to find an effective remedy.

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

A claim for compensation for losses caused by the commission of an anti-competitive action (inaction), the conclusion of an agreement that violates the legislation on the protection of competition or participation in it, the adoption of an anti-competitive act of a government body may be brought by any person who believes that as a result of the relevant actions (inaction), agreements , acts caused losses.

This is also indicated by special norms of antimonopoly legislation: persons whose rights and interests are violated as a result of violation of antimonopoly legislation have the right to apply in accordance with the established procedure to court, arbitration court with claims, including claims for 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 the Protection of Competition” (hereinafter referred to as the Law on the 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) (clause 2 of Article 15 of the Civil Code of the Russian Federation).

1.2. Subject of proof in claims for 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 courts of certain provisions of Section I of Part 1 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 No. 25) in cases of compensation for losses, the plaintiff is obliged to prove that the defendant is the person as a result of whose actions (inaction) the damage arose, as well as facts of violation of an obligation or causing harm, the existence of losses (clause 2 of Article 15 of the Civil Code of the Russian Federation).

The absence of guilt is proven by the person who violated the obligation (clause 2 of Article 401 of the Civil Code of the Russian Federation). As a general rule, the person who caused the harm is exempt from compensation for the harm if he proves that the harm was not caused through his fault (clause 2 of Article 1064 of the Civil Code of the Russian Federation).

Thus, guilt in breach of obligation or in causing harm is assumed until the contrary is proven.

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

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

Whether the plaintiff has losses and their size;

The cause-and-effect relationship between the violation of the plaintiff’s rights (illegal behavior) and his losses.

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

Recognizing the dismissal of the claim as justified, the court indicated that in order for the right to compensation for losses to arise, the plaintiff must prove the totality of such circumstances as the fact of causing losses and its amount; illegality of the behavior of the harm-doer; the presence of a cause-and-effect relationship between the occurrence of harm and the unlawful behavior of the harm-doer. In this particular case, this set of circumstances was not, in the opinion of the courts, proven by the plaintiff.

1.2.1. An action or inaction, an agreement, an act of the defendant that is contrary to antimonopoly legislation. The significance of the decision of the antimonopoly authority in the case of violation of antimonopoly legislation

The victim must prove that the violator committed a certain anti-competitive action or did not perform the action required of him in accordance with the antimonopoly legislation (allowed inaction), entered into an agreement or adopted an act that contradicts the legislation on the protection of competition.

The presence of a decision of the antimonopoly authority confirming a violation of antimonopoly legislation is not a mandatory requirement for satisfying a claim for 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 legislation.

Of course, this approach strengthens the legal position of the plaintiff, since the fact of violation of antimonopoly legislation will be confirmed by a decision of the competent authority.

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

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

Example 1. Decision of the Moscow Arbitration Court dated 02/19/2013, resolution of the Federal Arbitration Court of the Moscow District dated 09/04/2013 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 , an illegal requirement to pay 10,000,000 rubles upon conclusion of the contract. and illegal termination of heat supply.

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

Guided by this circumstance and paragraph 2 of Article 69 of the Arbitration Procedure Code of the Russian Federation, the courts exempted 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. A40-46424/10-59-378 on the recovery of damages (RUB 1,141,085,606.15) caused by violation of clause 6 of part 1 of article 10 of the Law on Protection of Competition.

As evidence of the defendant’s abuse of a dominant position in the form of unreasonably establishing for the plaintiff a different (inflated) price for the product compared to other consumers, the court accepted the written recommendations of the FAS Russia dated November 22, 2007 No. IA/22458 on pricing for this product and the response of the FAS Russia on court case, which expressed the position of the antimonopoly authority on the economically justified price for a given product.

The complexity of many antimonopoly cases, the specifics of a number of product markets, and the limited 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 of violation of antimonopoly legislation, it may be established that the actions (inaction) of the defendant in the antimonopoly case did not violate antimonopoly legislation, adverse consequences in the form of preventing, limiting, eliminating competition and (or) infringing on the interests of other persons (business entities) in the field of business activity or an indefinite number of consumers, which will save the parties from further litigation.

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

Example. Decision of the Moscow Arbitration Court dated July 25, 2013, resolution of the Ninth Arbitration Court of Appeal dated November 6, 2013 in case No. A40-33952/2013 on the recovery of losses 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 Law on Protection of Competition.

The courts rejected the claim because, in their opinion, the plaintiff did not prove that the defendant abused a dominant position. At the same time, the antimonopoly authority involved in the case as a third party did not see a violation of antimonopoly legislation in the actions of the defendant.

It is important to note that if a person who considers himself potentially a victim promptly applies for protection to the antimonopoly authority, the existing procedural time limits for consideration of antimonopoly cases make it possible to fully comply with the limitation periods for going to court in the future.

Among foreign jurisdictions, the recovery of damages based on a violation of competition law, confirmed by a decision of the antimonopoly authority, is common, in particular in European countries, and is called “follow-on” claims.

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

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

The cassation court confirmed that the plaintiff in the case of recovery of damages has the right to prove the defendant’s violation of antimonopoly legislation not only by reference to the decision of the antimonopoly authority, but also by the presentation of other evidence.

In such cases, the antimonopoly authority must be notified by the court about the commencement of the process, and subsequently the status of the antimonopoly authority 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 some issues arising in connection with application of antimonopoly legislation by arbitration courts").

1.2.2 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.

Moreover, in accordance with Article 15 of the Civil Code of the Russian Federation, as a general rule, a person whose rights have 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 represents the expenses that a person whose right has been violated has incurred or will have to incur 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 is necessary to keep in mind that the actual damage includes not only the expenses actually incurred by the relevant person, but also the expenses incurred which this person will have to make to restore the violated right.

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

Example 1. Decision of the Moscow Arbitration Court dated July 12, 2010 in case No. A40-46424/10-59-378 on the recovery of actual 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 established 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 real damages in favor of the plaintiff in the amount of RUB 1,141,085,606. 15 kopecks (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 of Russia).

Example 2. Decision of the Moscow Arbitration Court dated March 12, 2013, resolution 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 violation of paragraph 4 of part 1 of Article 10 of the Law on the Protection of Competition.

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

Lost profits represent lost income that this person would have received under normal conditions of civil transactions if his right had not been violated (clause 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 dated 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 there, since lost profits represent 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 has a probabilistic nature. This circumstance in itself cannot serve as a basis for refusing the claim.

By virtue of paragraph 2 of Article 15 of the Civil Code of the Russian Federation, if a person who violated a 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 no less than such income.

Since lost profits represent precisely the lost income (profit) of the injured 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 July 1, 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 paragraph 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 courts of certain provisions Civil Code of the Russian Federation on liability for violation of obligations”). Within the meaning of this paragraph, the amount of lost income (lost profits) must be determined taking into account the reasonable costs that the creditor had to incur to extract this income (production, transportation and other expenses).

A different approach would mean “overcompensation” for the plaintiff’s property losses, his unjust enrichment and the collection of excessive amounts from the defendant.

Despite the fact that damages due to lost profits are a common consequence of violations of antitrust laws, this type of damage is the most difficult to prove. Refusals to satisfy claims for lost profits are quite common.

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

Example 1. Resolution of the Federal Arbitration Court of the Moscow District dated 09/07/2012 in case No. A40-118546/2010 in the case of recovery of lost profits caused by the defendant’s unjustified termination of the supply of raw materials (the violation of antimonopoly legislation was confirmed by a decision of the Federal Antimonopoly Service of Russia).

More than 111 million rubles were recovered in favor of the plaintiff. lost profits calculated on the basis of a forensic report. 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 raised by the court and the parties to this dispute for forensic examination (decision of the Moscow Arbitration Court in this case dated July 1, 2011):

“a) What income (minus the expenses that the Claimant would have incurred in the production of CEM II/A-Sh 32.5 B cement from 62,140 tons of belite sludge) would the Claimant have received if the Defendant had carried out supply of 62,140 tons of belite sludge under supply contract dated 04/01/2006 No. 21-06-0116-00?

b) Was it possible for the Claimant to produce cement grade TsEM 11/A-Sh 32.5 B in August 2008?

c) If the Plaintiff had the opportunity to produce cement grade TsEM 11/A-Sh 32.5 B in August 2008, then what exactly resources (raw materials, production capacity, personnel) did the Plaintiff 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 sludge in August 2008 under contract No. 21-06-0116-00 dated 04/01/2006 the only factor that did not allow the production of cement grade TsEM 11/A-Sh 32.5 B ?

e) Did the Plaintiff have the opportunity and obligations to sell cement grade TsEM 11/A-Sh 32.5 B in August 2008 and in what volume?”

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 RUB 146,181,000.

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

The plaintiff 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 (RUB 146,181,000) and RUB 35,000,000. a penalty collected from the defendant for improper performance of the contract in the framework of another dispute (case No. A40-82320/2008).

As a result, damages in the amount of RUB 111,181,000 were recovered in favor of the plaintiff.

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

Example 2. Ruling of the Supreme Court of the Russian Federation dated December 7, 2015 in case No. A40-14800/2014.

In this case, the courts of first and appellate instances and the Supreme Court of the Russian Federation found that the defendant’s refusal to conclude a new supply contract (previously qualified by the FAS 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. Damages in the amount of almost 410 million rubles were recovered in favor of the plaintiff.

1.2.3. Direct cause-and-effect relationship between the violation and losses

The victim must prove the existence of a cause-and-effect relationship between the losses incurred and the illegal action - a violation of antimonopoly legislation.

Causation is probably the most difficult element to prove in damages cases. Often, courts refuse to satisfy claims on the grounds that the plaintiff has not proven the existence of a cause-and-effect relationship between the violation and the resulting losses.

Example. Ruling 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 a competition for the purposes of a state order.

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

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

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

Confirming the legality of the court of first instance satisfying the demand for the recovery of almost 8 million rubles. losses, the appellate court noted that for this category of disputes only a direct (immediate) cause-and-effect relationship between the defendant’s unlawful behavior and the plaintiff’s losses is of significance. A direct (immediate) cause-and-effect relationship occurs when in the chain of successively developing events between the unlawful behavior of a person and losses there are no circumstances relevant to civil liability.

Considering the presence in this dispute of a direct cause-and-effect relationship between the actions of the defendant and the costs incurred by the plaintiff, the appellate court agreed that the plaintiff proved the existence of circumstances that are the basis for the application of liability in the form of damages.

Similar conclusions about the need for a direct cause-and-effect relationship between the violation and losses are made by the courts when considering cases for the recovery of losses caused by offenses not related to violations of competition law (resolution of the Arbitration Court of the Moscow District dated March 10, 2015 in case No. A40- 32230/14, Arbitration Court of the North-Western District dated 02.20.2015 in case No. A56-66479/2013, Ninth Arbitration Court of Appeal dated 02.10.2015 in case No. A40-3077/2015, Thirteenth Arbitration Court of Appeal dated 09.10.2015 in case No. A21-8279/2014, etc.).

If a direct cause-and-effect relationship between the defendant’s unlawful behavior and the plaintiff’s losses is not proven, 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. losses caused by the defendant as a result of an act of unfair competition.

The courts of both instances rejected the claims, while the appellate court indicated that when demanding compensation for actual damage, the person whose right was violated must prove a direct cause-and-effect relationship between the damage and the actions of the person who violated the right, as well as his guilt.

The appellate court considered that the totality of these conditions had not been proven by the plaintiff, and therefore his stated demands could not be satisfied.

1.3. Determining the amount of damages in judicial practice

When determining the amount of damages, the positions set out in paragraphs 12 and 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 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 compensation for losses cannot be refused only on the grounds that their exact amount cannot be determined. 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 violation committed.”

"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 was violated would have increased if there had been no violation. Since lost profits represent lost income, when resolving disputes related to its compensation, it should be taken into account that its calculation presented by the plaintiff is usually approximate and probabilistic in nature. This circumstance in itself cannot serve as a basis for refusing the claim.”

Currently, a similar rule is enshrined in paragraph 5 of Article 393 of the Civil Code of the Russian Federation in relation to losses for violation of obligations. According to this rule, the amount of damages subject to compensation must be established with a reasonable degree of certainty. The court cannot refuse to satisfy the creditor's claim for compensation for losses caused by non-fulfillment or improper fulfillment of an obligation only on the grounds that the amount of losses cannot be established with a reasonable degree of certainty. 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 breach of obligation.

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 about the recovery of damages in relation to previously 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 dated March 24, 2016 No. 7, it is necessary for the plaintiff to prove not only the amount of damages, but, at a minimum, such grounds for the claim for damages, as the fact of occurrence of losses and the cause-and-effect relationship between illegal behavior and the claimed losses.

This position is shared by the practice of arbitration courts.

Example. Resolution of the Intellectual Rights Court dated August 8, 2014 No. S01-753/2014 in case No. A56-23056/2013 on the recovery of damages caused, inter alia, by the defendant’s violation of Part 2 of Article 14 of the Law on Protection of Competition.

In overturning the decision of the appellate court to reject the claim due to the lack of proof of the amount of damages, the Intellectual Property Rights Court indicated that the impossibility of justifying 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 a 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 recovery of damages, are confirmed.

When considering specific disputes, arbitration courts recover damages from violations of antimonopoly legislation, determining the amount of damages 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 an obligation on the defendant to compensate for losses, and recovered more than 1.6 billion from the defendant. rub. damages in the form of lost profits (decision of the Arbitration Court of St. Petersburg and the Leningrad Region dated April 16, 2015, upheld 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 preparing these products for sale.

Thus, the plaintiff presented in the case materials letters from buyers, in which they informed the plaintiff about the number of goods planned for purchase under supply contracts. The total cost of these goods, according to the plaintiff’s calculations, was RUB 2,089,586,523. 70 kopecks

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

As a result, the calculation of losses in this case looked like this:

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

It should be noted that the calculation of losses was verified by experts. According to the expert's opinion, the most probable value of the income that could have been received by the plaintiff from the sale of goods is 2,426,475,211 rubles, which significantly exceeds the price 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 Moscow Arbitration Court dated July 12, 2010 in the previously mentioned case No. A40-46424/2010, which awarded more than 1.14 billion rubles in favor of the plaintiff. losses.

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

The defendant did not provide evidence of the validity of the established price, and therefore the court came to the conclusion that the defendant violated paragraph 6 of part 1 of Article 10 of the Law on Protection of Competition.

As a result of these unlawful 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 was 1,141,085,606 rubles. 15 kopecks

Example 3. In case No. A40-135137/2012, 10 million rubles in damages resulting from the defendant’s unlawful refusal to enter into a heat supply contract and the threat of shutting off the heat supply were recovered in favor of the plaintiff.

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

However, after the start of the heating season, the defendant notified the plaintiff of the termination of the contract. At the same time, the defendant invited 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 - imposition of unfavorable contract terms 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 shutting off the heat supply, to purchase a block-modular boiler house, as well as to enter into an agreement for construction and installation work of the heating system. The total cost of equipment and construction and installation work amounted to RUB 9,966,460. This amount was recognized as the plaintiff's losses.

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. damages caused by the 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 its dominant position in the product market, in violation of the requirements of the law, included 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 execution of work 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 violation of paragraph 4 of part 1 of Article 10 of the Law on Protection of Competition, which was expressed in the establishment of requirements for loading railway cars only with a certain type of goods.

In August and September 2010, the plaintiff, within the prescribed period, sent electronic requests to the defendant for the transportation 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 FAS Russia as abuse of a dominant position in the commodity market.

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

Example 6. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02.02.2010 No. 4158/09 in case No. A40-643 77/08-77-496.

In this dispute, the Supreme Arbitration Court of the Russian Federation recognized as legitimate the recovery as damages of the difference between the economically justified price of the goods and the price inflated by the dominant entity (it should be noted that the Presidium of the Supreme Arbitration Court of the Russian Federation canceled the acts of the 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 indicated that the right to recover damages in such circumstances does not depend on the validity of the contract (terms of the contract) on the basis of which the inflated 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 has the right to demand 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 a certain condition is met - termination of the contract with the violator and failure to conclude a new one to replace the terminated one.

1.4. Legislative limitation on the possibility of recovering damages

In addition to the lack of proof of any of the grounds for compensation for damages, the basis for refusing a claim may be the legal nature of the relationship between the plaintiff and the defendant and the legal restrictions on the recovery of damages that exist in connection with this.

Part 3 of Article 37 of the Law contains a general rule that provides persons whose rights and interests are violated as a result of violation of antimonopoly legislation with the opportunity to use the methods provided 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, are 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 rights have 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 contract within the limits established by civil law (see also paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 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 on the recovery of damages caused by 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 accept thermal energy from the plaintiff under an energy supply agreement:

The court of first instance satisfied the plaintiff's request to recover lost profits in the amount of more than 4 million rubles. However, higher courts recognized this decision as unfounded.

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 turned 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 norms 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 contract, 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 shifting and indirect buyer claims

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

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

When objecting to a stated claim or an out-of-court claim, the defendant may argue that the victim has transferred all or part of his negative financial consequences to his own customers and cannot claim any damages in principle or calculate such damages as the difference between the fair market price and the inflated price. the price at which the affected entity purchased the offender’s product.

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

It should be taken into account that even the person affected by the violation completely transfers his increased costs to his own counterparties (increasing his own selling prices) does not mean a complete absence of losses for him. As a rule, an increase in the price of a product entails a decrease in demand for it and, accordingly, a decrease in the seller’s income.

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

The violator’s use of protection based on the transfer of costs by the injured party, and the actual functioning of markets, in which inflated prices by the violator usually entail an increase in prices by its counterparties (increasing prices along the resale chain or increasing prices for goods, services and work produced using the violator’s product) It also 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 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, “doubling” of the collected amounts does not occur: in terms of increased costs, both the primary and secondary buyers can demand compensation for losses only in relation to the costs that fell on them and were not transferred by them further to their own counterparties.

In this case, the direct cause-and-effect relationship between the unlawful behavior of the defendant (violator) and the plaintiff’s losses will be that it was the defendant’s violation that led to an increase in prices by its direct buyers and, accordingly, caused an unreasonable increase in the costs of indirect buyers.

2. Conceptual approaches to calculating losses

This section is devoted to a description of the conceptual approaches that form the basis for calculating losses caused by violation of antimonopoly legislation. The general economic principles used in calculating damages are discussed. These include, but are not limited to, counterfactual analysis, lost profits, and lost profits. reviews specific analytical techniques that can be used to conduct counterfactual analysis in practice. The final section discusses the sources of information used during the examination to calculate losses.

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 business 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, the competitive environment or the financial position of the business entity look like in the absence of a violation?

The practical application of counterfactual analysis is always based on a number of assumptions about costs, prices, sales volumes, overall market size, profitability and other parameters of the competitive environment that hypothetically could have occurred in the market under study if the violation had not occurred. The choice of these assumptions must be appropriately motivated by the party assessing the damages.

Economic methods must be used to test the validity of assumptions. The approaches discussed in detail in this document can provide a starting point for such analysis, but are not exhaustive. Depending on the specifics 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 assessing losses.

Once assumptions have been made about the basic parameters of the market and the competitive environment, it is possible to begin to quantify the loss that was caused to the injured party. From an economic point of view, this loss represents lost profits (commercial opportunities) that the injured person could realistically expect to additionally receive (use) in the absence of the violation.

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

2.1.2. Time factor and lost profit (lost profit)

In many cases, the need to assess losses arises some time after they have been caused, for example, after a decision has been made by the antimonopoly authority or court confirming the fact of violation of antimonopoly legislation. This means that the injured person needs to estimate not only the size of the loss when it occurred 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 business) opportunities. Otherwise, the loss will not be fully assessed.

To illustrate, as a simple example, we can imagine a situation where, as a result of anti-competitive actions, the injured business entity received less profit in the amount of 100 thousand rubles. a few years ago. However, if such a business entity currently receives the entire specified amount in compensation for losses, this will not compensate him for lost profits. Over the elapsed 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 injured person annually receives a return of 10% on the invested capital, then a shortfall in profit of 100 thousand rubles, which could have been invested within 2 years, will lead to an additional loss (lost profit) in the amount of 21 thousand. 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 business entity in question. Moreover, the reason why this income was not received is precisely the violation of antimonopoly legislation, which led to the initial loss of 100 thousand rubles.

The burden of proving the reality of the extraction of the said profit and the direct cause-and-effect relationship of its non-receipt with the violation committed lies on the person affected by the violation of antimonopoly legislation.

2.1.3. Violations of antimonopoly legislation that provide a prerequisite for calculating losses (other financial losses subject to restitution)

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

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

Establishing and maintaining monopolistically 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 (clause 2 of part 1 of Article 10 of the Law on Protection of Competition);

Economically or technologically unjustified reduction or cessation of production of goods (clause 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 (clause 10 of part 1 of article 10 of the Law on Protection of Competition);

Manipulation of prices on the wholesale and (or) retail markets of electrical energy (power) (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, surcharges (surcharges) and (or) markups (clause 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 auction (clause 2 of part 1 of article 11 of the Law on Protection of Competition);

Cartel agreements on the division of the product market on a territorial basis, the volume of sales 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 a reduction or cessation of production of goods (clause 4 of part 1 of article 11 of the Law on Protection of Competition);

Vertical agreements aimed at establishing the resale price of goods (clause 1 of part 2 of article 11 of the Law on Protection of Competition);

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

Agreements of economic entities that are participants in the wholesale and (or) retail markets for electrical energy (capacity), commercial infrastructure organizations, technological infrastructure organizations, network organizations, if such agreements lead to manipulation of prices in the wholesale and (or) retail markets for electrical energy (capacity) (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 (clause 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 auction (clause 2 of part 1 of article 11.1 of the Law on Protection of Competition);

Concerted actions aimed at dividing the product market on a territorial basis, the volume of sales 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 a reduction or cessation of production of goods (clause 4 of part 1 of article 11.1 of the Law on Protection of Competition);

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

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

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

Agreements or concerted actions of government authorities and business entities aimed at dividing the product market according to territorial principle, volume of sales or purchase of goods, range of goods sold, or composition of sellers or buyers (customers) (clause 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 product market.

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

Imposing on the buyer contract terms that are unfavorable for him or not related to the subject of the contract (clause 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 (clause 5 of part 1 of article 10 of the Law on Protection of Competition);

Establishment by a dominant economic entity of a monopolistically low price for a product (clause 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 (clause 8 of part 1 of article 10 of the Law on Protection of Competition);

Creating obstacles to access to the product market or exit from the product market for other business entities (clause 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) (clause 1 of part 1 of article 11 of the Law on Protection of Competition);

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

Cartel agreements leading to refusal to enter into contracts with certain sellers or buyers (customers) (clause 5 of part 1 of article 11 of the Law on Protection of Competition);

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

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

Agreements between business entities on creating obstacles for other business entities to access the product market or exit the product market (clause 3 of part 4 of article 11 of the Law on Protection of Competition);

Agreements between business entities on establishing conditions for membership (participation) in professional and other associations (clause 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 of contract terms on the counterparty that are unfavorable for him or not related to the subject of the contract (clause 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 government bodies and business entities aimed at reducing prices (tariffs) (clause 1 of Article 16 of the Law on Protection of Competition);

Agreements or concerted actions of government authorities and business entities aimed at limiting access to the product market or eliminating business entities from it (clause 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 the affected persons suffer losses (other financial losses compensated through restitution) both from rising prices and from the emergence of 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 the materials of an antitrust or court case. For example, there may be evidence of correspondence between business entities involved in an anti-competitive price agreement, which specifies how much prices were expected to increase. Such information can be used to assess how much the violation actually inflated prices.

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 allow for 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

All methods based on comparative analysis are based on a 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 commencement and/or after the cessation of disruption in the market in question;

In a different but comparable product and/or geographic market (at different periods of time).

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

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

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

If a range of approaches are used to estimate losses and they all produce similar results, then it can be assumed that the estimate is relatively more reliable. If different approaches lead to significantly different results, it is necessary to analyze the reasons for the differences and select the assessment that is the most reasonable.

Before and after analysis

If economic indicators (prices, market shares, profitability levels, etc.) preceding the period of the violation are known, then it is reasonable to expect that, other things being equal, they would have remained at the same level even in the absence of the violation. Moreover, if a certain dynamics of indicators was observed (for example, a rise or fall in prices before the violation), then it is reasonable to expect that the same dynamics would have persisted during the period of the violation itself (if there had been no violation). Thus, 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, level of profitability, etc.) that took place both before and after the period of violation are known, then, other things being equal, we can expect that in the absence of the 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 version of interpolation is linear interpolation, which assumes that the indicators under study, in the absence of a violation, rise or fall by the same amount in each period of time. An alternative option is exponential interpolation, which assumes a constant rate of growth (decrease) of the indicator under study.

Extrapolation and interpolation of prices The left graph shows a situation where price collusion took place in 2010-2014. However, there is no data on the prices that were established in the market after the end of the price collusion. Considering 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 collusion, which took place from the beginning of 2008 to the end of 2011. In this case, both data on prices preceding the violation and data on prices established after the end of the violation are available. Considering the relatively higher price level in 2012-2014. it is assumed that in the absence of a violation the price would gradually increase from 10 to 12 rubles per unit.

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

Also, when selecting data for analysis, it is necessary to take into account economic factors that may affect the reliability of the data. For example, if a violation occurred over a long period of time, the price level before the period of the violation may be irrelevant for assessing subsequent periods because consumer preferences, costs, and other market and competitive factors may have changed significantly over time.

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 the previous violation. For example, if there was a cartel agreement to establish and maintain prices at a certain level, then after its termination one can expect more fierce price competition and, accordingly, a relatively lower price level than if there had been no collusion at all. Conversely, in a collusion, 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 may have an impact on the loss estimate and should be taken into account accordingly in the calculations.

Analysis of comparable markets

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

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

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

The choice of comparison method in practice depends on the availability of relevant data, on the existence of presumably comparable markets, on the degree of their comparability and on other circumstances of the case. For example, if it is believed that demand in the market under study experienced significant changes during the disruption period, but detailed demand data are not available, then any comparison without taking into account fluctuations in demand will be unreliable. In this case, comparison with similar indicators in a comparable product market subject to similar fluctuations in demand will be preferable.

When comparing economic performance in the market under study during the disruption period with similar performance in other, presumably comparable product markets, certain basic criteria must be met. First, markets must be characterized by comparability 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.). Secondly, there must be comparability in terms of market/industry structure and degree of competition. If the violation took place in a highly concentrated market, it would be erroneous to make a comparison with some highly competitive market, even if the markets are otherwise comparable. Such a comparison will lead to a revaluation of the actual loss (see below “Method of differences”).

It is important to note that the more comparable the product market chosen for comparison, the more accurate the loss estimate may appear (all other things being equal). However, one can also expect a higher level of interchangeability on the demand side between closer product markets. As a consequence, if there is a high degree of substitutability between the (comparable) markets under consideration, the estimate of the loss may be distorted.

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

Analytical (econometric) methods used to analyze comparable markets 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 analyses. Their use simplifies the analysis when there are several variables that simultaneously influence the economic indicators under consideration. If we are talking about price analysis, and if the final price depends on several factors of production, then it will be necessary to assess how changes in prices for these factors of production affect the price of the final product in the absence of a violation. Standard regression analysis allows such an assessment to be made based on prices prior to the violation or on prices in comparable product markets.

The use of econometric methods allows us to take into account random fluctuations in prices or other economic indicators that are not explained by the available data. Taking into account these fluctuations allows us to assess the reliability of the estimate of the amount of loss. In other words, you can not just estimate the expected amount of loss in X rubles, but you can say that with a certain probability the loss ranged from Y to Z rubles.

It must be emphasized that comparable markets are never exactly identical. These differences must be given due consideration when assessing damages. To do this, it is possible to use approaches in which comparative analysis over time and comparative analysis with other product markets complement each other.

For example, by comparing the economic performance of the market in question prior to the disruption period with the economic performance of a comparable product market, the relative difference in these performance indicators between the two markets can be determined. In some cases, it can be expected that the difference in the indicators under consideration would prevail under normal conditions if the violation did not exist. Accordingly, taking the value of the economic indicator in a comparable product market during the period of the violation as a basis, and adding the specified difference, one can find the value of the economic indicator that would have been established in the market under study in the absence of the 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 called the difference method. This analysis takes into account overall 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 business entities operating in region A. Since the beginning of 2008, these business entities entered into a price cartel agreement, which led to an increase in prices for a certain product. The conspiracy was terminated by the end of 2012, when, at the request of buyers, the Federal Antimonopoly Service began considering a case of violation of Part 1 of Article 11 of the Law on the Protection of Competition in relation to these business entities. The same product is 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 costs to produce the product. 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 on a comparable product market in region B as hypothetical prices that would have developed in 2008-2012 in region A, in the absence of a violation, 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 prices in region B. It is reasonable to assume that this relationship would not have changed in 2008-2012. in the absence of price collusion. Accordingly, as a counterfactual price for region A, you can take the price of region B, adding 2 rubles/unit to it. to take into account 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 using economic and financial modelling. These methods are discussed in more detail below.

Financial modeling

Financial modeling is based on estimating profit margins and other financial indicators. For example, if we are talking about price analysis, then the price can be considered as the sum of production costs (cost) and the corresponding trade margin. Then, to calculate the prices that would have prevailed in the absence of the violation, it is necessary to estimate the cost of production and the trade margin that the injured person could realistically expect to receive under normal market conditions.

When estimating production costs, the actual cost data during the disruption period can be used as a starting point. However, it is important to understand that the actual cost may be inflated compared to what would have occurred in the absence of a violation.

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

Once the counterfactual cost level has been established, it is necessary to determine the size of the trade margin that would have occurred in the absence of the violation. This assessment can be obtained using comparative economic analysis. Thus, as a competitive trade margin, it is possible, if there is proper justification, to take the trade margin that has developed in comparable product markets or existed in a given 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 comparative analysis, it is also possible to use economic and mathematical modeling based on the theory of industry markets.

The theory of industrial markets is a branch of economics that studies how business entities set their prices and production volumes, as well as 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 limitations on production capacity, the method of pricing (tenders, retail sales, etc.), whether the product in question is ( service) homogeneous or differentiated.

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

The choice of model is determined by many factors. The main ones primarily include the following: the number of business entities, the degree of homogeneity of the product (service), the presence of capacity limitations, barriers to entry into the market, and whether one of the business 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 mechanisms of competition (for example, the quality of the relevant goods or services) - can also decisively influence the choice of model. All other things being equal, preference should be given to those models that have received more widespread 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 companies' annual reports to their shareholders. Other data, such as production costs per unit of output, may be available from the internal accounting records of business entities. When such data is not available, similar data from comparable markets can be used. Estimation of some model parameters, for example, demand elasticity, may require a separate econometric study. Expert estimates of model parameters may also be acceptable if there is appropriate justification.

Before proceeding to forecast prices or other economic indicators that would have occurred in the absence of the violation, the predictive power of the model must be tested against actual data. To test the model, both the market situation before the disruption and the situation during the disruption can be used. In the latter case, if we are talking about a price cartel agreement, all participants in the conspiracy can be considered as a single economic entity that optimizes the total profit of all cartel participants. If a model poorly predicts (describes) the market situation 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 the disruption. Such models may not be reliable.

In addition, to assess the significance of the model's assumptions, it is reasonable to evaluate 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 themselves estimates and, therefore, some variation in their level is expected. However, if such variation leads to significant variation in model-predicted prices, output, and other indicators, then the model may not be reliable for counterfactual analysis purposes.

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 industrial market theory. 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 select production volumes and then supply all their output to the market. It is also assumed that one equilibrium price is established in the market. The Cournot model describes markets of homogeneous products well, where manufactured products are sold at auction or on an exchange, for example, markets for metals or agricultural products.

Bertrand's model assumes that economic entities first choose prices for their products and then produce them in the volume required at these prices. Bertrand's model well describes markets for differentiated goods, where each product has its own price, and where economic entities can relatively quickly satisfy additional demand for their products (there are no capacity restrictions). Examples of such markets include some of the markets for computers or household appliances. When calibrating the Bertrand model, it is necessary to measure the degree of substitutability between all considered products within the boundaries of one market (that is, 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 in question). If barriers are relatively low, then anticompetitive price increases will naturally attract new producers. In this case, the behavior of economic entities will be deliberately inadequately described by these models, since they take into account the actions of existing market participants, but do not take into account 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 business entities are explicitly taken into account (since they are “built-in” into the corresponding model) . On the other hand, the disadvantage is that economic modeling requires the adoption of more stringent assumptions than those required by comparative analysis (for example, it is necessary to calibrate model parameters, accept the assumption of rational behavior of business entities, etc.). 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 conducting counterfactual analysis

Any objective sources of information can be used to conduct analysis to calculate losses. These include (but are not exhaustive), for example, the following:

Official statistical data, information received from antimonopoly, tax, customs and other government authorities.

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 government bodies (ministries, departments, industry regulators, etc.).

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

No single source of information can be identified 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 estimating losses.

If there are documents in the case materials indicating the amount of price increases by the cartel, etc., such documents can also be used to directly assess losses. For example, if there is correspondence between business entities involved in a price fix, which stipulates how much prices were expected to increase, this information can be directly used to assess losses caused by inflated prices.

However, even in such exceptional cases, a correct determination of the amount of losses without additional economic analysis is, as a rule, impossible. For example, economic analysis will still be required to estimate losses 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 establishment of monopolistically 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 to divide the product market, and it was appropriately proven that its negative consequences were expressed in rising prices, then such a violation also falls into 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 corresponding downstream markets. The downstream market is the market for products (goods, services) produced from the products of the market under consideration (i.e. for which the products of the market in question serve as raw materials). Markets in which the product in question is resold on new terms (for example, wholesale purchases are resold at retail) also refer to downstream markets. Similarly, the upstream market is the market for products either used as raw materials for the production of products of the market in question, or resold in the market in question.

3.2. Calculation of losses for direct purchasers of the product (service) 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 a markup 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.

Let's also consider an example of calculating losses (financial losses) for a situation where a monopolistically high price is set:

JSC "Company 1" is engaged in the production of goods A. At the same time, in the process of producing 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 is = 23 thousand rubles/unit. Annual sales were = 5 million units. With such indicators, the annual profit of JSC “Company 1” was 40 billion rubles: annual profit = = (23 thousand - 15 thousand) * 5 million units. = 40 billion rubles. From November 1, 2013, Perevozchik JSC increased the price for freight transportation. At the same time, it was established that this price exceeds the sum of expenses and profits necessary for the sale of freight transportation services, as well as the price that was formed in a comparable market, that is, this price is monopolistically 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%: out of 1,800 rubles attributable to the increase in cost, the company passed on 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. The 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 goods A by 1800 rubles, the financial losses of JSC “Company 1” as a result of inflated prices for freight transportation amounted to 8.1 billion rubles: = (16.8 thousand rubles - 15 thousand. 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 violator (JSC Carrier) in order to apply the consequences of the invalidity 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 reduction in sales volumes of JSC “Company 1” of product A in the amount of 0.5 million units. In the absence of a violation on the part of Carrier JSC, Company 1 JSC 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 per unit, thereby receiving 4 billion rubles. This amount represents losses from lost volumes. However, simultaneously with the decrease in profit 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 subject to recovery as part of a claim for damages. Losses from lost volumes are subject to reduction by the amount of additional profit from an increase in the selling 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 product (service) in question

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

Sometimes a violation can lead to losses even for those consumers who bought goods not from the actual business entities that committed a violation of antimonopoly legislation, but from their competitors. This can happen for several interrelated reasons.

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

Secondly, due to an unreasonable increase in prices, consumers of the product (service) in question will, to some extent, switch to competitive products from other manufacturers who were not involved 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. Buyers in downstream markets (indirect buyers)

Setting unreasonably high prices can lead to losses both for direct buyers of the product (service) in question, and for buyers in downstream markets (indirect buyers) due to the effect of cost transfer by direct buyers. The calculation of losses for business entities in downstream markets is based on the same logic that underlies the calculation of losses for direct buyers (see above).

Let's look at the first example from . Due to a cartel agreement on prices on the raw material 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” for the purpose of reselling it to a retail buyer. Initially, JSC "Company 2" sold the product at a retail price РЦк = 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 carryover effect was only 20% due to the high level of competition in the retail market). Retail sales volumes of JSC "Company 2" fell to 800 thousand tons. By analogy with 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 compensated due to the carry-over effect, and 600 million rubles. - losses caused by lost volumes. Thus, JSC Company 2, which purchases product A from JSC Company 1, can bring a claim against the suppliers of JSC Company 1 in the amount of 1,240 million rubles, since the price collusion of the latter led (indirectly) to an increase in prices for JSC "Company 2".

4. Calculations of losses caused by violations that limit access to the product market, eliminating economic entities from the market (reducing their market shares)

4.1. Introduction

In some cases, actions, agreements of business entities, and government authorities may limit market access for existing or potential competitors or be aimed at reducing the market share of competitors. Such cases include, for example, establishing monopolistic low prices, concluding exclusive contracts with suppliers or buyers, setting unreasonably high prices in the upstream market, selling a combined set of goods or services, imposing unfavorable contract terms on counterparties, unfair competition, etc.

Losses caused by such violations are primarily borne by existing competitors of the business entity or entities in question. In addition, potential competitors may also suffer 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 business entities already present on the market at the time of the violation is discussed in. The assessment of losses of business entities that planned to enter the market, but were unable to do so due to illegal restrictions on competition, is discussed in. dedicated to customer losses.

4.2. Estimation of 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, it is possible that the profitability of the affected person will decrease, its market share will decrease, and, possibly, the injured person will exit the market altogether. The negative effect of declining profitability (profitability) can be amplified by 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 violation?

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

Answering these questions allows for 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 market share of the injured party in the period preceding the breach may allow the calculation of the market share that the injured party would have subsequently had in the absence of the breach, or its profit. As in other cases of loss assessment, the simultaneous use of several methods can increase the reliability of the assessment.

Internal marketing research or commercial plans of business entities acquire additional significance for counterfactual analysis. 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 was planning investments to expand capacity and increase production, but was forced to cancel or postpone these plans as a result of illegal restrictions on competition by other market participants or authorities, then this information must be taken into account when conducting counterfactual analysis.

Based on the results of counterfactual analysis, it is possible to determine losses as the difference between the actual financial condition (market position) of the affected business entities and that which could have occurred in the absence of restrictions on competition. The choice of a specific indicator (indicator) of economic activity for assessing losses may be dictated by the characteristics of the situation under consideration and must be appropriately justified by the party assessing losses. Thus, if an estimate of revenue is not possible and if the violation primarily led to an increase in costs, then an approximate estimate of the loss can be obtained by considering costs alone, without taking into account revenue. Conversely, if the violation primarily led to a drop in revenue 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 restrictions on competition can have long-term consequences for competing businesses if their market position has been significantly weakened. For this reason, the economic situation of these economic entities observed after the period of violation, as a rule, is not indicative of the situation that could have occurred in the absence of the violation. Accordingly, when conducting a comparative analysis, it is preferable to use the period preceding the violation for comparison rather than 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 even after the end of the violation. Namely, the profit that a business entity receives after the end of the violation will be less than the profit that it could count on if there had been no violation at all. These losses will also constitute lost profits of the injured person subject to compensation.

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

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

Unjustified refusal to supply a resource JSC "Company A" is a vertically integrated company producing 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 Company A JSC is Company B JSC. JSC Company B purchases product 1, necessary for the production of product 2, from JSC Company A. Starting in 2011, Company A JSC unreasonably reduced the supply of product 1 to Company B JSC. This reduction in supplies led to a reduction in the market share of JSC “Company B” in the market for product 2 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 FAS Russia. As a result, Company A JSC was found to have violated antitrust laws, after which it resumed supplying Product 1 to Company B JSC in 2012. The affected party expects its market share and profits to return to their previous levels no earlier than the first half of 2014 The lost profits of both past and future periods that Company B would have received in the absence of the violation are shaded in white on the diagram, as the difference between counterfactual and actual profits. Counterfactual profits should include, if appropriately justified, income from the wise economic use of the company's available cash, for example, income from the reinvestment of these funds in production. JSC "Company B" may file a claim for compensation for all of these lost profits. The burden of proving that, in the absence of a violation, the market share and profit would have remained at their previous level, and that these indicators would be fully restored in 2014, rests with JSC “Company B”.

4.2.1. Assessment of competitors' losses from unfair competition

Unfair competition can cause no less damage than monopolistic activity - abuses from which more and more companies and entrepreneurs are suffering today, no matter what kind of business they are engaged in.

In particular, in practice, situations are common when, when providing similar services, an offender illegally uses a trademark, service mark, company name, commercial designation, etc., which is confusingly similar to a means of individualization registered for a competitor.

In addition to the fact that such actions mislead consumers of services, they can cause significant losses to the violator’s competitor.

Actions restricting competition can have negative consequences 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 violation. The basis for compensating losses to a potential competitor must be, among other things, proof that he not only planned (including made or began to make the appropriate preparations), but also could have successfully entered the market in the absence of a violation.

To assess the losses of potential competitors, the same methods are used as for assessing the losses of existing competitors, but with the following exception. When calculating 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, it is possible to conduct a comparative analysis of comparable markets, as well as financial or economic modeling, to calculate the losses of potential competitors. For example, the basis of financial modeling could be a potential competitor's business plan, which estimated the expected revenue and costs of entering the market in question, if this business plan was prepared before the violation.

The lack of data, for example, in terms of comparable markets suitable for analysis, may hinder the assessment of the full amount of the loss (for example, lost profit). In such cases, an economic entity may choose to file a claim aimed only at compensation for actual 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 restrictions on competition, then he may choose to file a claim against the violator only for the amount of these investment costs. At the same time, the burden of proving that such an approach is justified from an economic point of view and that these investments would be fully recouped in the absence of a violation lies with the injured person.

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

Creating barriers to entry into the market In the market for product 1, one economic entity, JSC “Company A,” operated. Additionally, JSC "Company B" considered the feasibility of entering this market. At the request of JSC "Company B", a business plan for entering the market was prepared with the following main conclusions.
	Income/expense category	Net present (discounted) value of planned income/expenses
	Capital investments (investments)	(RUB 10 billion)
	Production costs (cost less capital costs)	(5 billion rubles)
	Expected revenue	17 billion rubles
	Expected profit	2 billion rubles
JSC "Company B" decided to enter the market and begin construction of a new plant. Construction was completed in 2010 and cost Company B JSC 10 billion rubles. Once construction of the plant was completed and Company B JSC was ready to begin supplying product 1, Company A JSC set prices for its products below production costs. The monopolistic 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 declared illegal and contrary to antimonopoly legislation in 2013. By that time, JSC Company B had sold a 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 sue 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. would be fully repaid, rests with the plaintiff. It seems that this estimate of losses is conservative, since JSC “Company B” also suffered losses in the form of lost profits from the sale of the product (2 billion rubles), as well as in the form of associated lost commercial and investment opportunities in 2010-2013 .

4.4. Estimation of losses for buyers

The ultimate goal of restricting competition is to increase or enhance market power. Consequently, in the long term, restricting competition can lead to either higher prices or reduced availability and lower quality of goods and services. Accordingly, restriction of competition may lead to infringement of the interests of consumers of the product (service) in question. Along with existing and potential competitors of the infringer, buyers also have the right to compensation for 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 suffer losses subsequently. Thus, if a dominant economic entity sets monopolistically low prices in order to force competitors out of the market and with the aim of subsequently establishing monopolistically high prices, buyers will initially benefit, but then incur losses.

If the losses that buyers incur as a result of restrictions on competition are caused by unreasonably high prices, then the assessment of losses is carried out in accordance with the methods discussed in. Restrictions on competition may also lead to a decrease in the availability of goods and services or a decrease in their quality, which can cause losses to consumers of the goods and services in question. To the extent that this characteristic is subject to objective quantitative measurement, the general methods for calculating losses described in will apply in this case.

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*(1) Practical guidance on the assessment of damages in claims for damages arising from violations of Articles 101 or 102 of the Treaty on the Functioning of the EU.

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

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

*(4) To assess the legality of using certain standards of comparison or comparability of selected markets, it is necessary to use the principles that underlie the market comparability criterion in Part 1 of Article 6 of the Law. In particular, market structure, cost level, conditions of product circulation, competition, barriers to entry into the market, 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, K. Introduction to Econometrics. Second edition. M.: Infra-M., 2007.

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

*(7) In English-language economic literature the term economies of scale is used. Economies of scale mean a situation where the average cost of producing a good (service) decreases with increasing production volume. Accordingly, the greater the sales volume, the cheaper it is to produce one unit of goods (services).

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

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

*(10) See, for example, J. Tirol, Markets and Market Power: Theory of Industrial Organization, edited by V.M. Galperin and L.S. Tarasevich, St. Petersburg: Economic School, 2000.

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

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

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

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

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

*(18) In English-language economic literature the term economies of scale is used. Economies of scale mean a situation where the average cost of producing a good (service) decreases with increasing production volume. Accordingly, the greater the sales volume, the cheaper it is to produce one unit of goods (services).

*(19) In English-language economic literature the term network effects is used. The network effect refers to a situation where a product (service) is more valuable the more users there are for this product (service). Accordingly, profitability increases with increasing market share. Conversely, a drop in market share leads to a drop in profitability.

*(20) In this example, the assessment of losses includes a comparison of actual and counterfactual profits. Similar calculations can be made based on the company's cash flows. Both approaches lead to the same results in assessing losses.

*(21) Approaches to calculating counterfactual profits are discussed in.

*(22) In this example, the assessment of losses includes a comparison of actual and counterfactual profits. Similar calculations can be made based on the company's cash flows. Both approaches lead to the same loss assessment results.

*(23) Approaches to calculating counterfactual profits are discussed in.

Document overview

FAS Russia explains how to determine the amount of losses caused as a result of violation of antimonopoly legislation. The explanations summarize most of the existing methods for determining losses used in both 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 losses caused by violations of antimonopoly legislation and the applicable methods for their assessment and calculation.

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

Please note that a claim for compensation for losses caused by an anti-competitive action (inaction), the conclusion of an agreement that violates competition law or participation in it, or the adoption of an anti-competitive act of a government body can be brought by any person who believes that he has suffered losses as a result of this .

The core of 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 constituent entities of the Russian Federation and local governments that are contrary to antimonopoly legislation, aimed at preventing, limiting and eliminating competition.

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

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

Approximate forms of occurrence of abuse of dominant position specified in Art. 5 of the Competition Law are as follows:

Removal of goods from circulation, the purpose or result of which is to create or maintain shortages in the market or increase prices;

Imposing on the counterparty terms of the agreement that are not beneficial to him or are not related to the subject of the agreement (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 enter into an agreement only subject to the inclusion of provisions relating to goods in which the counterparty (consumer) is not interested;

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

Violation of the pricing procedure established by regulatory enactments;

Establishment of monopolistic high (low) prices;

Reduction or cessation of production of goods for which there is demand or orders from consumers if there is a break-even possibility of their production;

Unreasonable refusal to conclude an agreement with individual buyers (customers) when it is possible to produce 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 so-called horizontal (cartel) agreements, i.e. agreements between economic entities of the same level. Thus, agreements reached in any form by competing economic entities that have a combined market share of more than 35% of a product in a particular product are prohibited and, in accordance with the established procedure, are declared invalid, in whole or in part, if such agreements may result in a restriction of competition.

Clause 2 of Article 6 of the Law is devoted to vertical anti-competitive conspiracies. Thus, agreements reached in any form between non-competing business entities, one of which occupies a dominant position, and the other is its supplier and buyer, are prohibited, if such agreements have or may result in a 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 a 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 clause 1 of Article 7 of the Law, federal executive authorities, executive authorities of constituent entities of the Russian Federation and local self-government bodies are prohibited from adopting acts and taking actions that limit the independence of economic entities, create discriminatory or, on the contrary, favorable conditions for the activities of individual economic entities, if such acts and actions have or may result in restriction of competition and infringement of the interests of business entities or citizens.

When merging, creating, or accessing 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 incorporation of associations of commercial organizations, as well as commercial organizations themselves; 2) acquisition of certain blocks of shares (contributions, shares) in the authorized capital of business entities; 3) liquidation and separation (separation) of state and municipal unitary enterprises; 4) receipt by one economic entity of fixed production assets and intangible assets of another economic entity; 5) acquisition by any person of rights allowing to determine the conditions for an economic entity to conduct its business activities; 6) intertwining directorates.

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

AMA generally distinguishes between horizontal and vertical mergers. A horizontal merger means the combination of several previously independent firms belonging to the same industry. Such mergers are regulated most strictly, as they imply a reduction 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 eliminate competition for the “buyer”. Due to these differences between vertical and horizontal mergers, regulatory attitudes toward vertical mergers are somewhat more lenient.

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

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

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

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

2) monopolistic price collusion, withdrawal of goods from the market to maintain a shortage, division of the market, attempts to limit access to the market of competing firms are prohibited;

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

4) control over the activities of monopolists is exercised by the State Committee on 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 of up to 1 million rubles on the guilty company.

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

Introducing restrictions on the creation of new economic facilities, as well as establishing bans on certain types of activities;

Establishing bans and other restrictions on the export and sale of goods from one region to another;

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

Providing certain economic entities with unjustified benefits that put them in a preferential position in relation to other enterprises operating in a given market.

In 1995, the Competition Law was supplemented with Article 22.1. It provided that guilty illegal acts that violate antitrust laws may entail civil, administrative or criminal liability.

As is known, the mandatory signs of any offense are public danger; illegality; guilt and punishment, and the absence of any of them excludes liability.

The current version of the Law on Competition regulates the recovery into the federal budget of 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 has been resolved. Art. 26 “Compensation for losses caused to business entities” states that “losses: caused as a result of illegal actions (inaction) of a federal executive body, a government body of a constituent entity of the Russian Federation, a local government body: are subject to compensation by the Russian Federation, the relevant constituent entity of the Russian Federation or municipal entity."

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

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

“Failure to submit petitions, statements, information (information) to the antimonopoly authority, 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, statements, data (information) provided for by the antimonopoly legislation, or the submission of knowingly false information - entails the imposition of an administrative fine on officials in the amount of twenty to fifty minimum wages; for legal entities - from five hundred to five thousand minimum wages.”

Liability for violation of competition is also provided for in the Criminal Code: “ Article 178. Preventing, restricting or eliminating competition

1. Preventing, restricting or eliminating competition by establishing or maintaining monopolistically high or monopolistically low prices, dividing the market, restricting access to the market, eliminating other economic entities from it, establishing or maintaining uniform prices, if these actions entailed causing major damage, - shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by arrest for a term of four to six months, or by imprisonment for a term of up to two years.

Note. In this article, major damage is defined as damage the amount of which exceeds one million rubles.”

Today, the Federal Antimonopoly Service (FAS) decided to change antimonopoly laws. Moreover, both in terms of control and in terms of punishment. Penalties for violation of antimonopoly legislation will be significantly increased, and fines will be proportionate to the damage caused to citizens and business entities. In addition, the number of benefits and advantages 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 monopolistic activities in commodity markets.” He will join the government in the fall. The law will be based on a new ideology - the transition from a permitting and warning system to a control and notification system. Antimonopoly control will not prevent a particular company from developing (including through mergers) or conquering new markets. The main goal is to prevent this company from strangling others.

The draft new law proposes a multiple increase in the cost threshold for transactions requiring approval by the antimonopoly service. The threshold increases 100 times - to approximately 1 billion rubles. This will remove from preliminary control a huge number of transactions that do not affect competition, and will free up resources to control transactions that do affect competition.

Fines for monopolistic activities are supposed to be calculated based not on the minimum wage (minimum wage), but on the annual turnover of companies. The punishment will be proportionate to the income from monopolistic activities that the company received. Moreover, it will become easier to prove violations - say, price collusion in the form of cartel agreements. The 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 when, without economic justification, potential competitors simultaneously raise prices.

FAS promises that officials will not escape responsibility either. Today, approximately 50% of all cases handled by antimonopoly authorities are cases against governors, regional parliaments and executive authorities, which create administrative barriers that impede the development of competition. After changes in the law, it will become dangerous to create greenhouse conditions for “your” companies by expelling others from the market.

Thus, antimonopoly legislation will have to undergo significant changes, both through amendments and through the adoption of new laws. Today, the Government is seeking new reserves to ensure economic growth rates that will double GDP by 2010. Antimonopoly policy, with the right approach, can become a stimulus for economic and market development. Without competition in the broadest sense of the word, the task of doubling GDP will become very difficult.

Chapter 15. FINANCIAL LAW