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§1. Kinds of agreements between not competing managing Subjects

Agreements and actions between not competing managing subjects, as a rule, represent smaller danger to economy, than the agreement between competitors. Nevertheless, for the Russian and foreign participants of the civil circulation and pravoprimenitelnyh bodies they cause the greatest disputes.

Not only validity of interdictions for agreements and actions between nekonkurentami, but also the approach to identification of the forbidden agreements till now remain one of the thorny questions in very many laws and orders.

If classification of agreements between competitors is simple enough, classification of agreements between nekonkurentami mnogovariantna. First of all, this multi-variant approach is connected by that the subject structure of horizontal agreements is obvious while outside of the given category there is «all the rest». As consequence, a number of the Russian authors, carrying out the analysis of anticompetitive agreements, accurately allocates horizontal and "vertical". 1 Article 4 of the Law about competition protection defines the "vertical" agreement as the agreement between the managing subjects, one of which gets the goods, and another gives the goods. The European legislation [241 [242] (Regulations of EU from April, 20th, 2010 330/2010 about the general exceptions - further Regulations about the general exceptions) under the "vertical" agreement understands the agreement or combined action between two and more managing subjects, each of which for

The purposes of this agreement (or within the limits of these actions) carries out activity at various levels of an industrial chain or a chain of distribution of production, and concerning conditions on which the parties can sell, buy or pereprodavat the various goods or services. Accordingly the European legislation unlike Russian at definition of "vertical" agreements proceeds first of all from position of participants of the agreement in the market, and already in the second - from this about what they agree. The Russian legislation as it is represented, first of all is focused on the agreement maintenance. From here and the arising dilemma - whether can be "vertical" the agreement between competitors? Proceeding from the Russian legislation - can, as competitors can agree about purchase and sale of the goods both then the agreement will be qualified and as the agreement between competitors and as the "vertical" agreement. In this case on it statutory interdictions for both categories will extend. Thereupon special value gets differentiation of the contract and the agreement in understanding of the antimonopoly law. It ipostasjah (legal relation, the transaction, the document) can contain one contract in all a little

Antimonopoly agreements which can besides to be inseparable. In this case the contract parties will bear risks as interdictions from "vertical" agreements, and interdictions from agreements between competitors, that in practical monetary sense can mean some turnaround penalties for infringements antimonopoly

The legislations which objective party will differ. In order to avoid similar collisions, for example, Regulations about the general exceptions provide its distributions on dogovory (and in this case agreement it is necessary to translate so) which participants are competitors operating in the several markets, thus on one of them, inseparably linked with the contract, they do not compete.

The similar norm in Russia is not present. At the moment of preparation of the present work managing subjects can be guided only by explanations of Presidium FAS of Russia which do not carry standard характера.1

The separate attention is deserved by agency agreements which, have been excluded by "the third antimonopoly package» from the list of "vertical" agreements. For comparison - European pravoprimeniteli, considering agency service not from the point of view of the mechanism as in Russia, and in bolshej degrees from the point of view of risks of the agent and its possibilities, do not exclude agency relations from sphere of item 101 TFEU. [243 [244] After all in the European understanding though elements ekskljuzivnosti in the brokerage contract do not break the antimonopoly law, the duty, for example, not to compete after the termination of the currency of the contract, can create competition threat. The agency agreement can become also the arrangement tool between other participants of the market - not necessarily competitors, and, for example, in that situation when the agreement mediates information interchange between participants of the adjacent markets. Though in the latter case suppression means in the Russian antimonopoly law, despite a short story, also will be.

The American legislation is constructed much easier. Here the question on is key in what relations the agent and the principal, whether i.e. agency service it or resale actually consist. The agent is perceived as "component" of the principal, therefore agency service relations, for example, regarding fixation of the prices of resale, from sphere of antimonopoly interdictions are withdrawn, as «the tail cannot wag a dog». And in case the agent actually is the competitor of the principal in other market (the principal wholesale and retail, and the agent - only retail), and has possibility to operate independently relations can be qualified as dealer. [245]

The Russian initiative initially was disputable for some reasons. In - the first, this withdrawal has been directed first of all not on minimisation of unreasonable antimonopoly risks of the agent, and on the decision of an existing collision between norms of item 1007 GK the Russian Federation and item 11 of the Law on competition protection. The Russian Federation is provided by named article GK possibility of the agent (i.e. the seller of services) to limit the principal (i.e. the buyer of services) in the conclusion of similar contracts with other agents in the same territory, and also possibility of the principal to limit the agent in the conclusion of similar contracts in the same territory. The given interdictions as it will be shown further, are considered mismatching the Russian antimonopoly law that created uncertainty regarding consequences of a choice of the given norm at realisation of enterprise activity with use of contracts of agency service. At the same time, the exception of brokerage contracts of sphere of action of the antimonopoly law only for collision levelling between two norms, without a problem of regulation of similar relations, always was inexpedient. So, for example, as mark M.I.Braginsky and V.V. Vitrjansky, the agency service contract has many similar lines with the contract of confidential management. [246] from the point of view of a subject of the contract of agency service - representation - with the named kind of the contract are similar as well the contract of agency and the contract of factorage, similarity of the given contracts also follows from item 1011 GK the Russian Federation. According to FAS Russia «agency relations are way of rendering by the agent to the principal of intermediary services. Thus the principal as the proprietor of the goods, has the right to define, on which conditions the agent as the intermediary, should conclude dogovory on its advancement (volumes, the price, discounts, etc.) . Restriction of the right of the proprietor (principal) independently to define cost of realisation of production belonging to it will be unreasonable infringement of its civil rights. »[247] same tools work in all cases of representation, not only in agency service obviously having commercial character where avoidance of the conflict of interests has financially significant character. According to the logic of FAS Russia, from sphere of interdictions of"vertical"agreements it is necessary to exclude both the commission and the commission that, nevertheless, has not occurred. Probably because by working out of norm the estimation of influence on a competition and a question of dependence of the agent and the principal, and also various mechanisms of intermediary existing in the Russian legislation in attention have not been accepted.

Probably, all listed defects have led to that the antimonopoly body became the initiator of an exception of the reservation concerning agency agreements.

Besides, the exception of the brokerage contract of sphere of "vertical" does not mean impossibility of its qualification as anticompetitive Law on other bases about competition protection, as "other" agreement leading to restriction of a competition. Such approach is observed, for example, to the agency agreements concluded between managing subjects, not being competitors or sellers/buyers of the interchangeable goods, i.e. to a category of agreements between

The managing subjects who are not falling in strict frameworks of the "vertical" agreement, therefore sometimes ignored by researchers.

It is a question of conglomeratic agreements. In the Law on protection of a competition they are named as "others", in the European practice they will be more likely carried to "vertical". Agreements concern conglomeratic agreements between the managing subjects working in the different markets. For example, agreements between banks and insurance companies about the organisation of insurance of borrowers, between banks and the companies oil roznitsy (points on a bank card for car refuelling), agreements with organizers of bonus projects ("Malines", "Coherent") and many другие.1

Classification is possible also on the basis of degree of danger of agreements between competitors. Proceeding from such classification, it is possible to allocate, as well as in a case with horizontal agreements, absolutely inadmissible agreements, rather admissible agreements and admissible agreements.

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A source: BORZILO EVGENIE JUREVNA. ANTIMONOPOLY RESTRICTIONS of ENTERPRISE ACTIVITY of MANAGING SUBJECTS. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2016. 2016

More on topic §1. Kinds of agreements between not competing managing Subjects:

  1. CHAPTER 3. AGREEMENTS BETWEEN NOT COMPETING MANAGING SUBJECTS. ILLEGAL COORDINATION
  2. § 1. Subject structure in agreements of managing subjects.
  3. §2. The is conditional-forbidden conditions of agreements managing Subjects
  4. §3. An admissibility of agreements of managing subjects.
  5. CHAPTER 3. Antimonopoly content requirements of agreements Managing subjects.
  6. CHAPTER 2. Subject structure of agreements managing Subjects as the basis of application of a mode antimonopoly Regulations.
  7. Guterman Alexander Evgenevich. Antimonopoly regulation of agreements of managing subjects under the legislation of the Russian Federation. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2015, 2015
  8. § 2.2. A technique of carrying out of administrative controls of the legislation on a waste in local governments, territorial departments of Managements Rospotrebnadzora on subjects of the Russian Federation, managing subjects
  9. typology of integration of managing subjects
  10. § 2. An accessory of managing subjects to the certain market as the basis of application of measures of the antimonopoly Regulations.
  11. 2.3. Methods of managing subjects