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§ 1 Abusing a leading position in the commodity market (item 14.31,14.31.1 KoAP the Russian Federation)

Abusing a leading position in the commodity market - one of the most widespread offences in sphere of antimonopoly regulation. Administrative responsibility for it is provided item 14.31 and 14.31.1 KoAP the Russian Federation.

In dissertations of some authors the separate questions, concerning abusings a leading position [143] are mentioned. In a number of scientific works separate aspects of the given subjects [144] also are considered. However with the account more than centenary experience of existence of an interdiction for monopolisation in foreign countries, first of all to the USA, evolutionary development and enrichment by its judiciary practice [145], the named question deserves deeper judgement.

The basic object of the offences provided by item 14.31, 14.31.1 KoAP the Russian Federations, are competition relations in sphere of enterprise activity. As additional objects economic interests of other persons (ch here can act. 1 items 14.31 KoAP the Russian Federation). As marks S.Gabestro, «today 75-90 % of the initiated affairs in Law frameworks № 135-FZ" About competition protection "infringe on interests of the separate companies, instead of a competition as a whole» [146].

It is necessary to notice, that the formulation «interests of other persons» at all does not do the given protected object exclusively good a private order as interests can fall under this concept both the concrete person, and a circle (category) of persons [147]. However if in concrete dispute it is a question of infringement of the rights of the certain person, be how much true the antimonopoly law orientation on protection of its rights can, i.e. On private interest protection? According to N.I.Klein, «pravoprimenitelnaja activity of antimonopoly bodies is directed first of all on protection of public interests... At the same time, considering cases and making on them of the decision, antimonopoly bodies also protect the civil rights and legitimate interests of participants of the market» [148].

The analysis of item 1 of the Law on protection of a competition of the purpose and subject of the named Law, shows, that it regulates and protects only the public blessings. Thus item 12 GK the Russian Federation gives everyone a wide range of ways of protection of the civil rights. Thus, any subject has possibilities of independent protection of the right provided by the civil legislation, and at antimonopoly bodies if literally to interpret Law item 1, there is no duty on private interest protection.

Proceeding from such reasonings the conclusion that ch follows. 1 item 14.31 KoAP the Russian Federation protects not private interests peculiar to the public antimonopoly law and limits of its action should be are shown to protection of the rights of an uncertain circle of persons. However, joining opinion of other authors, we believe, that such conclusion will be superficial.

O.V.Shalman approves, that «the antimonopoly law urged to provide protection not only public, but also private interests as object of an offence can be not only the public policy, but the concrete civil rights of managing subjects» [149]. E.J.Borzilo specifying adheres to similar opinion also, that the norm-interdiction on abusing a leading position can be regarded both as civil-law, and as public [150].

The right to a competition of the individual subject also can be provided with administrative responsibility, and attraction possibility for antimonopoly law infringement to civil responsibility serves only as one more display of the state guarantees of the specified rights. Probably, the problem here consists at all in differences of protected items 14.31 KoAP the Russian Federation of objects (private interests or public), and in absence of accurate understanding of such categories, as bar of claim by lapse of time, restriction or competition elimination. After all any infringement of interdictions of the antimonopoly law concerning the concrete subject is not that other, as private display of restriction of a competition as a whole. As other authors consider also. So, S.A.parapike approves, that «breaking the rights and legitimate interests of separate subjects of business, and also consumers (the private rights and interests), monopolistically activity harms to public laws and interests, i.e. To the state and a society as a whole» [151]. As a matter of fact, in chch. 1 and 2 items 14.31 KoAP the Russian Federation the quantitative criterion has found application. In this connection also sanctions for fulfilment of the infringements provided by specified parts, can essentially raznitsja.

Important value has that circumstance, that ch. 1 item 14.31 KoAP the Russian Federation should carry out only protection of the public relations settled by the antimonopoly law. Infringements of the legislation of other branch should be pursued separately. For example, law-breakings about protection of the rights of consumers should be pursued according to other norms KoAP the Russian Federation (item 14.7, 14.8 KoAP the Russian Federation). The position similar, as a matter of fact, has been stated by Presidium of the Supreme Arbitration Court of the Russian Federation which has specified that it is impossible to recognise lawful the decision and instruction FAS of Russia accepted by results of check of the managing subject in connection with complaints to infringement of the rights of consumers, in the absence of the actions attracting bar of claim by lapse of time, restriction, elimination of a competition or breaking the legislation on natural monopolies [152]. The Supreme Court of the Russian Federation [153] adheres to a similar position also.

The competition is a rivalry of managing subjects, therefore its restriction in the form of abusing a leading position infringes upon interests first of all managing subjects. By the way, item 5 before the operating Law of RSFSR from 22.03.1991 № 948-1 «About a competition and restriction of monopolistically activity in the commodity markets» forbade abusing a leading position concerning other managing subjects, instead of other persons. Thus, in the current Law on protection of a competition the legislator has tried to protect in addition interests of the consumer in competition sphere.

Undoubtedly, the competition, no less than its restriction, infringe on interests of consumers. However in itself consumers are not participants of a competition. Antimonopoly structures KoAp of the Russian Federation protect "game rules" of managing subjects which assume relations the managing subject - the managing subject. The legislator has tried to establish direct protection of the rights of consumers against antimonopoly law infringements, not having included them in number of subjects of a competition. The decision of the given problem sees in that in itself "game rules" of managing subjects on the market to make in the maximum degree corresponding to interests of consumers, and their infringements - unprofitable for managing subjects. In this case direct protection of the rights of consumers against antimonopoly law infringements will be not necessary.

Subjects of the offences provided by item 14.31, 14.31.1 Codes, legal bodies and officials are. Here it is impossible to agree with opinion that «to consider under given article as the subject of the individual businessman it is inexpedient, as subjects of small business by definition cannot occupy a leading position in the market» [154]. The author of the given judgement does not consider feature of the market (geographical, historical and t.) on which the individual businessman can operate. Besides, the conclusion that the individual subject is by all means the subject of small business, is made without positions of the Federal act from 24.07.2007 № 209-FZ «About development of small and average business in the Russian Federation», reference of individual businessmen supposing possibility and to subjects of average business.

The subject of the specified offences is special is the managing subject which concept has been considered in chapter 1 of the present work, or its officials. Moreover, the special subject of the offences provided by item 14.31, 14.31.1 KoAP the Russian Federation, should possess one more characteristic: to occupy a leading position in the corresponding commodity market. As some authors truly specify, «domination of the managing subject (group of persons) in the market in itself is not something reprehensible, illegal.

Infringement is abusing the managing subject, a group of persons a leading position in the market, i.e. Use in harm of the strong economic situation in the market - a leading position »[155]. Under A.N.Varlamovoj's fair statement,« presence of the subject occupying a leading position, does not testify yet to monopoly presence in the market »[156]. At the same time S.A.parapike believes, that« basically in itself presence of dominating (exclusive) position in the market already limits a competition and in this sense is undesirable to competitive legal relations »[157]. Last judgement is represented disputable. In our opinion, not the condition of the market characterised by presence of players with the different market power, and illegal use of such power can be competition restriction.

Criteria of a leading position are fixed in item 5 of the Law on competition protection. Position of the managing subject (group of persons) or several managing subjects (groups of persons) in the market of the certain goods, giving to such managing subject (group of persons) or such managing subjects (groups of persons) possibility to make solving impact on general terms of the reference of the goods in the corresponding commodity market admits dominating, and (or) to eliminate from this commodity market of other managing subjects, and (or) to complicate access on this commodity market to other managing subjects. The analysis used by the legislator in this case word-combinations «to make solving impact» testifies that it is estimated. Pravoprimenitel on the basis of the internal belief should define, whether render actions of this or that managing subject solving influence on general terms of the reference of the goods in the corresponding commodity market.

And legislatively the concept of general terms of the reference of the goods is not fixed, criteria of importance of influence on such conditions are not established. Misunderstanding pravoprimenitelem these categories creates difficulties in proving of structure of an offence and finally leads to errors in pravoprimenenii [158]. Some reference points are fixed in regulations FAS of Russia [159], the Russian Federations № 12221/10 on business № А56-62505/2009 [160] are formulated from 15.02.2011 in the decision of Presidium YOU, however it is obviously not enough of them, and to fix them owe the law.

Domination in the market can be individual and collective. An individual leading position of the managing subject (except for the financial organisation) position of the managing subject admits:

1) which share in the market of the certain goods exceeds 50 % if only at a legal investigation about infringement of the antimonopoly law or at realisation of the state control over economic concentration it will not be established, that, despite excess of the specified size, position of the managing subject in the commodity market is not dominating;

2) which share in the market of the certain goods constitutes less than 50 % if the leading position of such managing subject is established by antimonopoly body proceeding from its share invariable or subject to insignificant changes in the commodity market, the relative size of shares in this commodity market, belonging to competitors, access possibility on this commodity market of new competitors or proceeding from other criteria characterising the commodity market. If the share of the managing subject constitutes less than 35 percent (if for the concrete market the law does not establish a smaller threshold of domination [161]), such subject comes under to responsibility for abusing a leading position under item 14.31.1 KoAP the Russian Federation.

Thus if other is not proved, the share admits equal specified in the register of managing subjects (and. 13 decisions of Plenum YOU the Russian Federation № 30 from 30.08.2008). Antimonopoly bodies not always correctly are guided by the given explanation. So, Management FAS across Leningrad region had been defined Open Society leading position «the Luga water canal» on the basis of data of the register of the managing subjects having a share in the market more of 35 %, brought there not concerning the named society, and concerning the person recognised as the bankrupt, also individual before carrying out functions resursosnabzhenija in similar geographical borders. The court has specified in abnormality of such approach of executive organ to the decision of the given question [162].

So, the basic criterion of domination - a share in the market. The share as an indicator of the market power is used also by vessels of EU [163]. But this criterion not the unique. For example, the Court of the European union in business United Brands has defined a leading position of the managing subject as possession the economic power which gives the chance to it to influence and (or) to limit the competition which has developed in the given market and to operate substantially independently from the competitors in the market, neza - visimo from the buyers and consumers [164]. As we see, the market power in the given definition is not adhered directly to a share.

In the Russian antimonopoly law other criteria (except a share) too are used. So, position of the managing subject - the subject of natural monopoly in the commodity market which is in a condition of natural monopoly admits dominating, thus any instructions in the Law on a market share are absent. About existence of quantitative and qualitative criteria of domination writes A.N.Varlamov [165]. Qualitative criteria are applied in case a market share of the managing subject less than 50 %, less than 35 % (to item 14.31.1 KoAP the Russian Federation). Quality indicators concern: an invariance or susceptibility to insignificant changes of a share of the managing subject in the commodity market; a parity with shares in this commodity market, belonging to competitors; access possibility on this commodity market of new competitors; other criteria characterising the commodity market; Possibility presence unilaterally to define level of the price of the goods and to make solving impact on general terms of sale of goods in the corresponding commodity market, etc.

Criteria of collective domination are provided ch. 3 items 5 of the Law on competition protection. In calculation the cumulative share no more than three or no more five largest managing subjects of the market thus is accepted. And the share in the market of each of them should exceed 8 %. In the first case the domination threshold constitutes 50 % from all market of the corresponding goods, in the second case - 70 %. So, on the basis of criteria of collective domination Open Society leading position «Gazprom oil» together with societies HK "Rosneft", "LUKOIL", «Gazprom oil», «the multinational corporation-VR Holding» in the wholesale markets of automobile gasolines and aviation kerosene, and with societies «NK Rosneft», "LUKOIL" - in the wholesale market of diesel fuel has been established. For abusing a leading position in these markets of Open Society «Gazprom oil» has been appointed the penalty at a rate of 675 983 472 rbl. [166]

Introduction of institute of the collective domination borrowed from foreign practice, has not received an unequivocal positive estimation at researchers [167], and some of them even consider its as "extremely dangerous" [168]. The matter is that collective domination is rather difficult for delimiting from the adjusted actions of managing subjects as both collective domination, and the adjusted actions is a result of the coordination of will of subjects on fulfilment of anticompetitive acts. However the ultimate fact at disposal of legal proceeding about the specified infringements of the antimonopoly law essentially differs. Absence of legal definiteness in qualification questions gives the chance to antimonopoly body to choose any way an "attack" variant that is not the certificate of high level garantirovannosti the rights of managing subjects from administrative influence.

The leading position establishment is made by antimonopoly body during the analysis of a condition of a competition within the limits of special procedure according to Order of carrying out of the analysis of a condition of a competition in the commodity market (utv. Order FAS of Russia from 28.04.2010 № 220 - further the Order № 220). The domination establishment is possible only with reference to the concrete commodity market. Stages of carrying out of the analysis and an estimation of a condition of the competitive environment in the commodity market are: definition of a time interval of research of the commodity market; definition of grocery borders of the commodity market; definition of geographical borders of the commodity market; definition of structure of the managing subjects operating in the commodity market; calculation of volume of the commodity market and a share of managing subjects in the market; definition of level of concentration of the commodity market; definition of barriers of an input on the commodity market; an estimation of a condition of the competitive environment in the commodity market; Drawing up of the analytical report.

Non-observance by antimonopoly body of positions of the Order № 220 can testify to groundlessness of the conclusions made by results of the analysis of a competition. So, Presidium YOU the Russian Federation, cancelling the decision from 30.07.2013 № 1162/13 certificates of courts below on business № А03-1338/2012, in which Open Society "НК" Rosneft-Altajnefteprodukt "have been recognised by abused leading position, special attention has turned on non-observance of procedure of an establishment of a leading position. The presidium YOU the Russian Federation has especially noted inadmissibility of the admission antimonopoly body of obligatory analysis stages of a condition of a competition, necessity of attentive definition of a time interval of research of the market, and also necessity of correct use of the provided methods of the analysis of a condition of a competition. Wrong delimitation of the commodity market is rather extended pravoprimenitelnoj an error [169].

Summing up told, it is possible to conclude, that the subject of the offence provided by item 14.31, 14.31.1 KoAP the Russian Federation, there can be legal bodies carrying out economic activities (their officials) and the individual businessmen possessing separately or in aggregate with other persons the economic power in the market of the certain goods which gives the chance to them to make solving impact on a competition condition provided that possession such market power it is established by competent state body with observance of the ordered order.

The objective party of an offence is constituted by the actions recognised as abusing by a leading position and inadmissible according to the antimonopoly law of the Russian Federation. In the literature it is fairly noticed, that abusing a leading position is behaviour, «which is characterised by the actions which are distinct from what companies make at a normal competition, and results or can lead to difficulty of maintenance of a competition or interferes with its development» [170]. Abusing a leading position are not any actions of the managing subject occupying a leading position in the commodity market, but only what are directed on preservation or strengthening of the position in the corresponding commodity market with use of the forbidden methods aggrieving to competitors and (or) other persons [171]. According to item 86 of the Contract on establishment of EUROPEAN ECONOMIC COMMUNITY from 25.03.1957 [172] (the Roman contract) abusings a leading position can consist, in particular: in imposing, expressly or by implication, the unfair prices of the purchase or sale or other unfair terms of trade; in restriction of manufacture, the markets or technical development to the detriment of consumers; application of unequal conditions to equivalent transactions with other trading partners, laying down them thus in unprofitable conditions of a competition; d) volume, that the conclusion of contracts is caused by acceptance by partners of additional obligations which on the character or according to trading practice, are not connected with a subject of these contracts.

Article 10 of the Law about competition protection fixes the list of actions (inactivity variants) which if they attract bar of claim by lapse of time, restriction, elimination of a competition and (or) infringement of interests of other persons, are abusing a leading position. In it the resulted positions of the Roman contract are in many respects apprehended. Abusings can be subdivided on contractual (for example, imposing of unprofitable conditions [173], refusal of making contract [174]) and out of to govornye (for example, creation of obstacles to access into the market [175]); price (an establishment exclusively high (low) the prices [176], infringement of an order of pricing [177]) and not price (for example, not price discrimination [178]); certainly forbidden and rather forbidden (item 13 of the Law on competition protection).

The list of the actions forbidden by item 10 of the Law on protection of a competition, is opened and, hence, does not exclude possibility of qualification as abusing of other acts or omissions of managing subjects. It is necessary to notice, that not only a consequence in the form of bar of claim by lapse of time, restrictions, elimination of a competition and (or) infringements of interests of other persons is criterion for qualification of act of the subject occupying a leading position, as abusing. Plenum YOU the Russian Federation in and. 4 decisions from 30.06.2008 № 30 has explained: « ... Estimating such actions (inactivity) as abusing a leading position, it is necessary to consider positions of article 10 GK the Russian Federation, parts of 2 articles 10, a part of 1 article 13 of the Law on competition protection, and, in particular, to define, the given actions in admissible limits of realisation of the civil rights have been made or they impose on counterparts unreasonable restrictions or unreasonable conditions of realisation by counterparts of the rights »are laid down.

The position about necessity on such affairs of application of item 10 GK the Russian Federation has become stronger in judiciary practice of courts below: « For ascertaining of misuse of right realisation by the dominating managing subject of the civil rights (its actions or inactivity) in each concrete case should be exposed to an estimation about an admissibility of limits of realisation of such rights, a rationality of those or other restrictions, and also an orientation of harmful consequences of estimated actions »[179]. However in a science the question on a parity of concepts of abusing a leading position and misuses of right is debatable. So, D.A.Petrov, O.A.Gorodov approve, that abusing a leading position« represents a special case more the general concept of misuse of right »[180]. Other authors hold opposite opinion [181]. So, A.Volkov approves, that the mention of abusing a leading position in item 10 GK itself has got rid of the Russian Federation and leads to its only unreasonable identification with abusing forms the civil rights. As a matter of fact the unfair dominating behaviour represents infringement of norms of the objective right and, hence, becomes a wrongful competition [182].

The presidium the Russian Federation noticed YOU, that the direct purpose of item 10 GK the Russian Federation is not punishment of the person who have abused the right, whether - and protection of the rights

tsa, the victim from this abusing [183]. It is thought, that, being based on this true, in our opinion, the statement, it is possible to conclude, that for the private-law purposes of item 10 GK the Russian Federation it is possible and it is necessary to regard as the base of application of item 10 of the Law on competition protection. For attraction to administrative responsibility - is not present, as its basis is the offence, instead of misuse of right. Courts, as a rule, in the decisions, concerning questions of abusing a leading position in the market, refer to the concrete norms of the branch legislation which broken or have been not broken in concrete business. Much less often judicial decisions on affairs of the specified category are based on item 10 GK the Russian Federation [184] though such cases are available even in practice of Presidium YOU the Russian Federation. In particular the position YOU the Russian Federation stated in the decision of Presidium from 20.06.2013 № 17786 on business № А19-507/20 1 2 [185] of abusing by a leading position to one of banks at realisation of settlement-cash service of physical persons, practically is entirely based on item 10 GK the Russian Federation. The presidium YOU has specified to Russia, that bank actions on commission collection at payment in the budget of the payment answering to signs of tax gathering, is putting on on counterparts of unreasonable restrictions and an establishment of unreasonable conditions of realisation by counterparts of the rights and testifies to actions of bank out of admissible limits of realisation of the civil rights.

In practice of antimonopoly bodies distribution at disposal of legal proceeding about infringement of item 10 of the Law on competition protection has received neuka - zanie concrete point of a part 1 item 10 of the Law on protection of a competition [186].

Positions of vessels at the decision of a question on necessity of exact qualification of illegal anticompetitive act were divided. In business № Al 0-2943/2011 Fourth arbitration appeal vessels has nullified the decision Buryat At FAS as last has not specified including the concrete broken point ch. 1 items 10 of the Law on protection of a competition [187]. However, such decisions are individual. More often courts dismiss such arguments of applicants [188]. As arguments of such position or it is not resulted in general anything [189] or it is underlined, that the list of infringements fixed in ch. 1 items 10 of the Law on the competition protection, open [190].

Such approach is represented erroneous. Legal qualification is an establishment the authorised persons of structure of the fact, a disposition and a hypothesis of the rule of law coming under to application and conformity of the given structure of the juridical fact to these to a disposition and a hypothesis. It means application of dispositions and hypotheses of legal rules [191]. Besides, as it is perfect obosnovanno it is underlined in the literature, «for correct legal qualification of the facts it is necessary to choose to (find) the norm (norms) directly calculated on these facts» [192].

It means, that the act forbidden by the legislator in the concrete image, at its fulfilment and should be qualified as infringement of such interdiction. Otherwise the norm hypothesis cannot be considered properly applied, instead of it the norm with higher degree of abstraction is actually applied, i.e. Other norm.

Importance and necessity of exact qualification of act is proved also by the following. In item 39.1 of the Law on competition protection the special procedure under separate forms of abusing is established by a leading position. In particular, in case of revealing of signs of infringement pi. 3 and 5 ch. 1 item 10 to the dominating managing subject stands out the prevention, and commencing a suit is perfectly in order gl. 9 Laws without removal of the prevention and before end of term of its performance on the specified infringements are not supposed [193]. In case business is already initiated, and the prevention is executed, business stops. However, sometimes antimonopoly bodies bypass this requirement, not specifying on a commencing a suit stage concrete point ch. 1 items 10 of the Law on protection of a competition [194].

The position about neobjazatelnosti definitions by the commission of antimonopoly body of point ч.1 item 10 of the Law on protection of the competition, broken in a concrete case, can lead to non-use of established items 39.1 of the Law on protection of a competition of features of consideration of separate categories of affairs and unreasonable attraction of persons to responsibility. In practice similar cases meet. So, FAS the Ural district, nullifying the decision At FAS on the Chelyabinsk area about an establishment in actions of Open Society "РЖД" of infringement ch. 1 items 10 of the Law on competition protection, has noticed, that actually Management has revealed the infringement provided by item 3 ch in actions of a society. 1 item 10 of the Law on competition protection, but the prevention to it to law-breaking did not direct [195]. Certainly, the court position is true.

All stated allows to formulate the following conclusion: at definition in acts of the person of infringements ch. Whether in all cases the antimonopoly body should specify 1 item 10 of the Law on competition protection these acts fall under concrete points of this part. Instructions in the substantive provision of the decision of antimonopoly body only references on ch. 1 item 10 of the Law on competition protection is supposed only in case acts of the person do not come within the purview of concrete points ch. 1 items 10 of the given Law.

Abusing can be made in shape as actions, and in inactivity, however, item 14.31 dispositions, 14.31 KoAP the Russian Federation pursue only actions that is absolutely illogical about what it was repeatedly specified in the literature [196].

The objective party of the offence provided ch. 1 items 14.31 KoAP the Russian Federation, constitute only such abusings which result or can lead to infringement of interests of other persons and result of such actions is not and bar of claim by lapse of time, restriction or competition elimination cannot be. If the acts forbidden by item 10 of the Law on protection of a competition, result or can lead to bar of claim by lapse of time, restriction or competition elimination, or are made by the subject of natural monopoly they form the structure provided ch. 2 items 14.31 KoAP the Russian Federation.

In practice there is a collision of norms of item 14.31 (regarding infringement of point 10 of a part 1 items 10 of the Law on competition protection) and 14.6 KoAP the Russian Federation (infringement of an order of pricing). In one cases antimonopoly bodies and courts qualify acts as the offences provided by item 14.6 KoAP the Russian Federation [197], in other cases similar acts are considered as abusing a leading position [198]. In practice also there are cases of simultaneous impeachment as under the item

14.6 and under item 14.31 KoAP the Russian Federation [199]. So, Open Society «the International airport Vladikavkaz» has been involved in administrative responsibility on ch. 2 items

14.6 KoAP the Russian Federation for infringement of the established order of application the airport - nyh gathering at service of air vessels Russian and foreign ekspluatantov, expressed that the order of the director had been established an additional payment for rendering regulated according to the legislation on natural monopolies of services. For application of this payment concerning the counterpart of Open Society "МАВ" also it has been involved in administrative responsibility on ch. 2 items 14.31 KoAP the Russian Federation [200].

The size of sanctions for fulfilment of the named offences essentially differs: ch. 2 items 14.6 KoAP the Russian Federation the maximum penalty for legal bodies of 100 thousand rbl., while provides impeachment on ch. 2 items 14.31 KoAP the Russian Federation can threaten with the mullions-strong turnaround penalty. In the literature inadmissibility of such situation [201] is underlined. The higher degrees of jurisdiction directly concerning the described collision have not expressed till now.

In the literature as criterion of differentiation of considered structures the subject of administrative responsibility is offered: only the managing subject occupying a leading position in the market, can be the subject of the offence provided by item 14.31 KoAP the Russian Federation [202]. In the decision of the Seventh arbitration appeal court from 12.07.2012 on business № А45-16574/2010 the position concerning qualification of acts of the managing subject occupying a leading position, breaking the established order of pricing is stated. The court, motivating necessity of qualification of acts under item 14.31 KoAP the Russian Federation, instead of under item 14.6 KoAP the Russian Federation, has noted: «at qualification of actions of the managing subject on the given structure of an offence it is necessary, that in the corresponding commodity market it occupied a leading position and has made the action (inactivity) characterised as abusing by this position» [203].

It is necessary to notice, that this decision has been taken out after a business direction on new trial by Presidium YOU the Russian Federation. Initial judicial certificates of vessels of all instances on the given case proved qualification of act under item 14.31 KoAP the Russian Federation. However YOU the Russian Federation, adhering to an opposite position, has taken out definition from 19.09.2011 № ВАС-9109/11 about transfer of business to Presidium YOU the Russian Federation where has specified, that the item

14.6 KoAP the Russian Federation is special in relation to item 14.31 KoAP the Russian Federation. The presidium YOU the Russian Federation at a legal investigation has not supported this position though the decision from 01.12.2011 № 9109/11 has directed business on new trial on the bases which have been not connected with qualification.

We believe, that a position, according to which item 14.6 KoAP the Russian Federation is special in relation to item 14.31, is erroneous. Paramount value at the analysis of these norms has a parity of objects of offences. Patrimonial object of the offences provided by item 14.6 and 14.31, 14.31.1 KoAP Russian Federation, public relations in sphere of enterprise activity are. Specific object of the offence provided by the item

14.6 KoAP the Russian Federations, serve the relations arising at formation of the price for the goods out of a context of relations of a competition. Competition relations in the corresponding market as the basic object of the specified offence are not considered. However, as is known, one of competition kinds is the price competition. Hence, actions of the managing subject on price formation can serve as way of suppression of competitors. Wrongful acts of the dominating subject on price formation - abusing a leading position (item 14.31, 14.31.1 KoAP the Russian Federation) - finally lead to competition restriction that testifies to a direct encroachment on one more object (besides the relations arising at formation of the price for the goods) - relations in competition sphere. As identical acts in one cases harm only to the relations arising at formation of the price for the goods (the item 14.6 KoAP the Russian Federations), and in others - in addition encroach also on competition relations (item 14.31 item, 14.31.1 KoAP the Russian Federation) so far as in the latter case act should be considered as a special case of the first. Thus, items 14.31, 14.31.1 KoAP the Russian Federation are special in relation to item 14.6 KoAP the Russian Federation.

However the question decision on parities of these norms yet does not allow to delimit the given structures from each other. Search of criteria is necessary for such differentiation. Wrongful overestimate and understating of controlled prices (item 14.6 KoAP the Russian Federation) represents infringement of the established order of pricing which is punished as well under item 14.31 KoAP the Russian Federation, and ch. 2 items 14.6 KoAP the Russian Federation in a part of "other infringement of the established order of pricing» practically coincide with formulations of the interdiction containing in ch literally. 1 items 10 of the Law on protection of a competition and protected by item 14.31 and 14.31.1 KoAP the Russian Federation. It is obvious, that differentiation of these structures only on the basis of the objective party - to act - is impossible.

Signs of the subjective party also cannot be sufficient criterion for their differentiation. The expressed differences to subjective signs in above-stated articles are absent. The in itself orientation of intention on infringement of this or that specific object for pravoprimenitelja cannot serve as sufficient criterion for differentiation of considered structures. First, it is unevident, and secondly, is difficultly demonstrable. Nevertheless on specific object of an encroachment as it is noted above, these offences differ from each other.

Courts at otgranichenii analyzed structures use only subject criterion [204], i.e. Responsibility raznitsja depending on that, occupies or the subject making act does not occupy a leading position in the market. In the literature it is offered also as criterion for differentiation of the named structures to consider (and to fix in item 10 of the Law on competition protection) damnified [205]. However, the author of the given offer does not concretise, to whom exactly and in what form this harm is caused. It is thought, that the in itself consequence (in the form of injury) hardly can serve as appropriate criterion for differentiation of the named structures as at identity of acts presence or absence of harm testifies only to various severity level of offences (quantity indicator), instead of about their qualitative difference.

Some authors the Russian Federation see the reason of a collision of item 14.6 and item 14.31 KoAP in "zadvoenii" competence FAS and FST, and the decision of this problem - in accurate differentiation of their competence [206]. Judiciary practice in some cases also starts with the body competence under the control in certain sphere [207]. We believe, that the illegibility in distribution of powers under the control in pricing sphere between FAS Russia and FST is a secondary question for the permission of a collision of item 14.6 and 14.31 KoAP the Russian Federation. Their dispositions describe acts of managing subjects, and the collision permission, hence, is possible by differentiation of their behaviour, instead of the persons, authorised to consider cases under given articles.

It is thought, difference of considered structures is caused by set of subject, objective and objective signs. Not only the status of the dominating subject predetermines qualification of act under item 14.31, 14.31.1 KoAP the Russian Federation, but also the fact of its use, abusing it, and for the purpose of preservation or strengthening of the position in the corresponding commodity market, with aggrieving to competitors and (or) to other persons. The account of the named objective sign allows to resolve a collision of structures. The same sign underlines communication of illegal act and specific object - relations in competition sphere.

In the most preferable way of the decision of a collision updating of item 14.6 KoAP the Russian Federation excluding from sphere of the application of act, punishable according to item 14.31, 14.31.1 KoAP the Russian Federation sees.

It is necessary to pay attention to item 14.31 competition, 14.31.1 Codes (regarding imposing to the counterpart of the treaty provisions which unprofitable for it or are not concerning a subject the contract) and item 179 UK the Russian Federation (compulsion to fulfilment of the transaction or to refusal of its fulfilment). As truly marks D.A.Petrov, «the operating antimonopoly law does not explain the maintenance of the term"imposing"[208]. Does not contain it and GK the Russian Federation. Differentiation here should be spent on the objective party of an offence. Article 179 UK the Russian Federation as a constructive sign of structure fixes a way of fulfilment: under threat of violence, destructions or damages of another's property, and it is equal distributions of data which can do essential harm to the rights and legitimate interests of the victim or its relatives, in the absence of extortion signs. Imposing owing to the item 10 Laws on competition protection consist in the requirement about transfer of financial assets, other property, including property rights, and also the consent to conclude the contract under condition of entering into it of positions concerning the goods in which the counterpart is not interested, and other requirements. However the way of a presentation of the given requirement is not specified.

According to FAS Russia, stated in the letter from 12.11.2008 № АГ/29484 «About an explanation pravoprimenitelnoj experts», «imposing to the counterpart of the treaty provisions unprofitable for it, consists in such behaviour of the dominating managing subject at which the rights of the counterpart are struck or it is forced to enter legal relations on unprofitable conditions for itself(himself). Thus any compulsion as physical influence, imposing of unprofitable conditions does not assume». However it is necessary to consider, that the given letter is withdrawn by antimonopoly body, moreover it is recognised by the invalid decision YOU the Russian Federation from 29.12.2010 № ВАС-13888/10 as mismatching the Decree of the President of the Russian Federation from 23.05.1996 № 763 «About an order of publication and coming into force of certificates of the President of the Russian Federation, the Government of the Russian Federation and standard legal acts of federal enforcement authorities».

In the way of elimination of a collision - addition of dispositions of item 14.31 and 14.31.1. A word-combination: «in the absence of penal act».

Obligatory sign of the subjective party of administrative violation is the fault. Ignoring of proving of fault can be the basis for a recognition illegal decisions about awarding punishment. For example, the court, recognising illegal decision UFAS on the Udmurt Republic about awarding punishment, has especially noted absence of a substantiation of fault MUP «the Water canal of of Glazov» \

At an establishment of fault of the legal person it is necessary taking into account positions ch. 1 item 2.1 KoAP the Russian Federation to find out, whether there was for it a possibility for observance of requirements for which infringement of items 14.31, 14.31.1 KoAP the Russian Federation is provided administrative responsibility, whether it had been took all measures depending on it on their observance. So, the court, proving presence of fault UP of a city of Moscow on operation high-rise administrative and apartment houses (further - State Unitary Enterprise EVAZHD) in fulfilment of abusing by a leading position by infringement of an order of pricing by delivery of hot water, has specified, that fault consists in exhibiting of State Unitary Enterprise EVAZHD of accounts for lack of the approved tariffs though it could vozder - [209] to press close from their exhibiting before acceptance when due hereunder the authorised body of the corresponding decision.

Abusing a leading position the managing subject for which punishment under item 14.31 KoAP the Russian Federation is provided, can be made, in our opinion, only deliberately. The term "abusing" testifies to a direct orientation on achievement of corresponding result. However, as it has already been noted, forms and fault kinds (item 2.2 KoAP the Russian Federation) are applicable only to physical persons.

So, the basic object of the offences provided by item 14.31, 14.31.1 KoAP the Russian Federation, - competition relations in sphere of enterprise activity, additional - interests of other persons. Thus interests of other persons cannot be considered separately from competition relations as the interdiction for abusing a leading position has the antimonopoly nature. It is addressed the special subject - to the managing subject occupying a leading position in the market. For definition of such status carrying out of the economic analysis of the market during the special procedure which infringements frequently attract cancellation of decisions about awarding punishment, as a rule, is necessary. In itself employment of a leading position in the market nepredosuditelno. At qualification of act and on purpose otgranichenija from adjacent structures (including fixed in the item 14.6 KoAP the Russian Federation) should be established, whether there was such act by abusing by a leading position causing a damage to competitors and either) other persons or creating such threat.

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A source: Titov Evgenie Evgenevich. ADMINISTRATIVE RESPONSIBILITY FOR INFRINGEMENTS of the ANTIMONOPOLY LAW of the Russian Federation. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg - 2015. 2015

More on topic § 1 Abusing a leading position in the commodity market (item 14.31,14.31.1 KoAP the Russian Federation):

  1. §3. Abusing a leading position in the market
  2. § 4. The Unfair competition (item 14.33 KoAP the Russian Federation)
  3. § 4. Abusing questions a collective leading position
  4. § 2 Restriction of a competition by authorities, local governments (item 14.9 KoAP the Russian Federation) 1 [210]
  5. § 2. Features of structures of the administrative violations provided by item 5.35 KoAP the Russian Federation
  6. §1. Definitions of abusing by a leading position and Criteria of its qualification
  7. §3. Classification and the analysis of separate kinds of abusing a leading position.
  8. § 3. A problem of definition of concept «the commodity market» for the antimonopoly law of the Russian Federation
  9. CHAPTER 4. ABUSING THE LEADING POSITION
  10. §2. The agreements limiting a competition and an interdiction of abusing by a leading position
  11. § 3. The conclusion of the agreement limiting a competition, realisation of the adjusted actions limiting a competition, economic activities coordination (item 14.32 KoAP the Russian Federation).
  12. § 3. Structure of the administrative violation provided by a part of 1 article 20.25 KoAP the Russian Federation
  13. the Appendix 2. Number condemned under item 148 UK the Russian Federation (according to Judicial Department at the Supreme Court of the Russian Federation)
  14. § 2. Legal regulation and the organisation of activity of police in the course of revealing of the administrative violations provided by a part of 1 article 20.25 KoAP the Russian Federation
  15. § 3. Organization-legal bases of excitation by police of affairs about the administrative violations provided by a part of 1 article 20.25 KoAP the Russian Federation
  16. 2.2.1. Interrelation of the market of the inhabited real estate of the Russian Federation with a labour market
  17. competition Restriction (item 178 UK the Russian Federation).