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§2. The is conditional-forbidden conditions of agreements managing Subjects

Quite often in the special literature by the competitive right interdictions for the "vertical" agreements of managing subjects established ch. 2 items 11 of the Law on competition protection, name "unconditional".

It is incorrect for following reasons.

Unconditional interdictions for the conclusion of anticompetitive agreements are established ch. 1 item 11 of the Law on protection of a competition also are applied to rigid horizontal agreements - to cartels. To recognise as admissible such agreements it is impossible under no circumstances. Such right antimonopoly bodies, nor court do not possess managing subjects (representation of proofs of an admissibility of agreements), neither. The given interdiction is запретомper seи is considered more in detail in the previous paragraph.

As it is established ch. 6 items 11 of the Law on the competition protection, managing subjects can present proofs of an admissibility of the agreements. From here follows, that about any unconditional interdiction for the "vertical" agreements specified in ch. 2 items 11 of the Law, cannot go and speeches. The interdiction has character of conditional prohibition.

The is conditional-forbidden agreements of managing subjects are not defined by the Law on competition protection as a separate kind of anticompetitive agreements. By analogy to other kinds of agreements they are provided in separate norms of the antimonopoly law.

Considering, that antimonopoly regulation is applied differentiated to various agreements, all anticompetitive agreements concern the is conditional-forbidden agreements hozjajstvujushchihsubektov except for cartels (ch. 1 items 11 of the Law on competition protection) and economic activities coordination in one commodity market which leads to the consequences specified in ch. 1 items 11 of the Law on competition protection.

Economic activities coordination is allocated by the author in the present paragraph intentionally. It is caused by that antikonkurnetnye agreements and coordination are the phenomena accompanying each other in many cases, therefore to ignore the coordination which is not leading to consequences, specified in ch. 1 item 11 of the Law on competition protection, but forbidden by other positions of item 11, is not obviously possible.

Horizontal, "vertical" and other agreements of managing subjects can be carried to the is conditional-forbidden agreements.

The "vertical" agreement is defined item 19 of item 4 of the Law on competition protection as the agreement between the managing subjects, one of which gets the goods, and another gives (sells) the goods. We see, that these agreements consist between managing subjects who are not direct competitors. The basic difference of "vertical" agreements consists in it from agreements horizontal in which managing subjects are direct competitors.

At the same time, agreements between manufacturers of the goods and their distributors also should be carried to "vertical" even in the event that the parties of such agreements realise the goods in one commodity market. [44]

Easier speaking, the vertical agreement from the point of view of economy is understood as mutual relations of the enterprises, which nahodjatsjana different stages of an industrial/technological chain.

The agreement between the manufacturer of the goods and its distributor can be [45] most widespread example of such agreement.

The "vertical" agreements specified in ch. 2 items 11 of the Law on competition protection are forbidden, if:

1) such agreements result or can lead to an establishment of the price of resale of the goods, except for a case if the seller establishes a ceiling price of resale of the goods for the buyer;

2) such agreements provide the obligation of the buyer not to sell the goods of the managing subject which is the competitor of the seller.

As a rule, within the limits of such agreements conditions of movement of the goods from the manufacturer to the consumer are defined. It is caused by wide treatment of the concepts used by the Law on protection of a competition for definition of the "vertical" agreement.

Such agreements in the scientific literature have received the name «vertical integration» that means «industrial and organizational association, merge, cooperation, interaction of the enterprises connected by the general participation in manufacture, sale, consumption of a uniform end-product: suppliers of materials, manufacturers of knots and details, collectors of a final product, sellers and end-product consumers». [46] it is noticed, that vertical integration can bear and a positive effect. It is fair to notice, that such known lawyers expressed positivity of anticompetitive agreements, as Frenk Isterbruk and other pupils of the Chicago school of the right also.

A number of the Russian scientists also underlines some utility of "vertical" agreements. For example, I.V.Knyazev notices, that «the modern antitrust legislation considers not price vertical restrictive agreements from a position of a rule of a rationality as at their substantial realisation is present positive is more often, rather than the negative effect for a competition and consumers the modern antitrust legislation considers not price vertical restrictive agreements from a position of a rule of a rationality as at their substantial realisation is present positive is more often, rather than negative effect for a competition and consumers». [47]

Signs of "vertical" anticompetitive agreements:

1) agreements consist between really operating managing subjects;

2) the parties of such agreement are not among themselves direct competitors, thus they can compete among themselves as the seller and the buyer who has got the goods for the purpose of its subsequent sale ("kvazivertikalnye" agreements);

3) in edition of "the Third antimonopoly package» the brokerage contract is excluded from "vertical" anticompetitive agreements;

4) agreements are harmful to a competition and (or) economy. The small list of interdictions for "vertical" agreements can

To be explainable that such agreements is much more difficult to cause a loss to economy, rather than kartelnymi agreements. For this reason the law supposes also a recognition admissible such agreements.

At the same time, it is not necessary to think, that such agreements are absolutely safe. Within the limits of such arrangement the managing subject can to refuse, for example, a competition to another managing subektomputem refusal in purchase of the goods, or to limit territory on which the buyer has the right pereprodavat the goods.

Besides, antimonopoly requirements and restrictions are not applied to the "vertical" agreements which participants in the commodity market possess a share which are not exceeding 20 percent. Conditions of clearing of antimonopoly regulation of "vertical" agreements in connection with a share in the market of the goods, not exceeding 20 percent, are not applied, if it is a question of agreements between the financial organisations. The share of the managing subject in the commodity market comes under to proving by antimonopoly body. Otherwise any "vertical" agreement cannot be recognised by illegal. [48]

Thus, the is conditional-forbidden "vertical" agreements can be agreements which result or can lead to competition restriction; which are concluded between managing subjects, the share in which commodity market (or at least one of them) exceeds 20 percent, and also between the financial organisations; which result or can lead to the consequences specified in ch. 1 items 2 of the Law on protection of a competition and (or) which contain the conditions specified in ch. 2 items 2 of the specified law.

Essence of the is conditional-forbidden agreements that the question of their recognition is considered by the illegal with application of "a rationality rule» according to which any "vertical" agreement can be recognised by admissible if it will be proved about absence of negative consequences from it.

The is conditional-forbidden "vertical" agreements not always were known to antimonopoly practice. Earlier in the USA they were запрещеныper se if such agreements contained certain conditions which can do much harm a competition as to the independent legal phenomenon.

In antimonopoly practice of EU "vertical" agreements come under till now unconditional запретуper se if in them contain including positions about restriction of conditions of resale of the goods in certain territory or to certain buyers, about an establishment of the price of resale. [49]

The is conditional-forbidden "vertical" agreements specified in ch. 2 items 11 of the Law on competition protection, differ from other is conditional-forbidden "vertical" agreements which will be considered further, that for their interdiction it is not required to establish negative influence on a competition. Such approach bears a faint resemblance to interdictions per seдля cartels, however these "vertical" agreements are conditionally forbidden and can be recognised by resolved on certain rules.

Practical interest is represented by classification of "vertical" agreements for their subsequent differentiation in a subject of conditions of agreements. Such agreements from the point of view of their purposes can be classified on "vnutribrendovye" and "mezhbrendovye". Detailed classification of "vertical" agreements is resulted by lawyers of

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Zaharovym and V.Rakerom. Thus authors notice, that the classification resulted by them is approximate and opened.

vnutribrendovye restrictions are subdivided on not price and price.

171 Zaharov G, Raker V.Regulirovanie of vertical agreements to Russia and the USA//Legal Insight. 2013. N 2 (18). With. 46-57.

Restrictions concern not price restrictions concerning territory and buyers, position about area of performance of the basic obligations, exclusive distribjutorskie sales («ekskljuzivnost the seller» and «ekskljuzivnost the buyer».) and conditions about a site.

Price restrictions are subdivided into vertical agreements on an establishment of a ceiling price of resale of the goods, vertical agreements on an establishment of a floor price of resale of the goods.

mezhbrendovye restrictions happen in the form of imposing of additional assortment, exclusive cooperation, the most-favoured nation clause. As a matter of fact, mezhbrendovaja the competition consists in competition among themselves manufacturers of various marks.

«A classical example» is conditional-forbidden "vertical"

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Agreements results Kinev A.JU.antimonopoly body it has been established, that the managing subject and it 10 distributors have entered into "vertical" agreements which have led to an establishment of the price of resale of the goods in the baking soda market, thereby having broken ch. 2 items 11 of the Law on competition protection. «The situation became complicated that», - the author, «that since December, 2010 of Open Society" Soda "which is the unique manufacturer of baking soda in Russia writes, began to realise baking soda under the new scheme which provided an additional link in trading operations, - Open Society« Uniform trading company »(the managing subject who has broken ch. 2 items 11 of the Law on protection

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Competition - the comment of the author) monopolised baking soda sales ».

«With the fourth antimonopoly package» it is planned to expand sphere of application of institute of "vertical" agreements, having excluded from item 19 ch. 4 Laws on protection of a competition position that the brokerage contract is not the "vertical" agreement.

172 Kinev A.JU.cartel and other anticompetitive agreements//Is prepared for system ConsultantPlus in 2014//Union of Right Forces "ConsultantPlus".

173 In the same place.


Following kind of the is conditional-forbidden agreements of managing subjects the Law on competition protection names agreements of the managing subjects who are participants wholesale and (or) the retail markets of electric energy (capacity), the organisations of a commercial infrastructure, the organisations of a technological infrastructure, the network organisations if such agreements lead to a manipulation the prices on wholesale and (or) the retail markets of electric energy (capacity) (ch. 3 items 11 of the Law). Such agreements concern other agreements of managing subjects, and the interdiction for them has special character and is duplicated in the Federal act about electric power industry.

Is conditional-forbidden other anticompetitive agreements are established and in ch. 4 items 11 of the Law on competition protection if it will be established, that they result or can lead to competition restriction. More in detail about these agreements it was considered in the previous paragraph to dissertational work. The important difference of these agreements from the is conditional-forbidden "vertical" agreements specified in ch. 2 items 11 of the Law on competition protection, are compulsion of proving of their negative influence on a competition.

On analogies to agreements of the managing subjects forbidden per se, the is conditional-forbidden agreements between competitors also are connected with the invalidity of transactions provided ch. 2 items 168 GK the Russian Federation. Ways of protection of the civil rights from antimonopoly law infringement are the restitution, compensation of property as a result of unjust enrichment and the indemnification, statutory about competition protection.

It is important to notice, that negligibility of transactions of managing subjects-competitors, запрещенныхper se, and negligibility of the is conditional-forbidden transactions, takes place only in the presence of the interdictions fixed at legislative level for the conclusion of agreements of managing subjects. In other cases of the agreement though and leading by the forbidden Law on protection of a competition to consequences, but not specified in it, cannot be recognised by void as do not meet the requirements of item 168

GK the Russian Federation. In the ways of protection of the civil rights from such agreements are only the indemnification as it should be ch. 3 items 37 of the Law on competition protection, and also by suing about unjust enrichment as chapter 60 GK the Russian Federation.

Positions about a conditional interdiction of agreements of managing subjects do not extend on the agreements concluded by managing subjects, entering into a group of persons if one of such managing subjects concerning another establishes the control or if such subjects are under the control of the third (ch. 7 items 11 of the Law on competition protection).

The law on competition protection establishes a conditional interdiction for economic concentration, under which item 21 of item 4 of the Law names transactions and other actions of the managing subjects which realisation influences a competition.

Under a competition of item 7 of item 4 of the Law on competition protection defines process of rivalry of managing subjects at which independent actions of each of them unilaterally to influence general terms of the reference of the goods in the corresponding market.

The competition can be considered from the point of view of two positions:

1. A competition - the economic-legal phenomenon or a condition at which market economy mechanisms effectively function. Representatives of the Chicago school of the right adhere to such approach.

2. A competition - process. As supporters of such theory act A.Thompson and A.Dzh. Striklend, A.Dominik and others.

Last makes following definition of a competition: «now among experts in antimonopoly regulation it is widely recognised, that the competition is a process, instead of an equilibrium condition... The Competition is not set condition, and always dynamic process where sellers continuously aspire to offer participants of the market more attractive alternatives». [50]

The domestic antimonopoly law has gone on a way of a recognition of a competition process, that is rivalry of managing subjects.

In difference from set of basic changes in the Law on protection of the competition, brought by "the Third antimonopoly package», the concept of economic concentration has not undergone changes. It can be caused that as a matter of fact «definition... The term« economic concentration »is more likely a legal definition, rather than the exact description

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The phenomenon which is designated this term by an economic science ». [51]

Having carried out the analysis of chapter 7 of the Law on competition protection, we see, that the state control over economic concentration is directed on two kinds of legal activity of managing subjects: on the conclusion of transactions and on creation and reorganisation of the commercial organisations. The named kinds of legal activity are called as "objects of the control of economic concentration».

Transactions (action) which come under to state regulation, are established ch. 1 items 26.1 of the Law on competition protection: 1) transactions (action) concerning actives of the Russian financial organisations and being in territory of the Russian Federation of the basic industrial means and (or) non-material actives or concerning voting actions (a share); 2) transactions (action) concerning the rights concerning the Russian commercial and noncommercial organisations, and also foreign persons and (or) the organisations which are carrying out deliveries of the goods on territory of the Russian Federation in the sum, exceeding 1 billion roubles within a year previous date of realisation of the transaction or other action, coming under to the state control.

The considered state control is directed on protection of the domestic commodity markets against excessive influence of foreign managing subjects, development of a competition and other purposes of the antimonopoly law.

The state control over creation and reorganisation of the commercial organisations is regulated item 27 of the Law on competition protection. In ch. 1 specified article the closed list of cases in which creation and reorganisation of the commercial organisations can be carried out only from the preliminary consent of antimonopoly body is established.

The increase in economic concentration attracts negative influence on economy, a market competition and possibility of monopolisation of the market. For example, at joining to one managing subject to the-participant of the commodity market - other managing subject acting before such joining to its straight lines competitive in the form of merge. Finally the new managing subject will possess bolshej the market power and possibility to establish monopoly.

The named example is «horizontal merge» at which association occurs between competitors.

At the same time, in practice cases of "vertical merge» at which managing subjects act as the seller and the buyer under the relation to each other are frequent. Acquisition by one managing subject who is the manufacturer of the certain goods, other managing subject which makes production necessary for production of the managing subject-buyer can be an example of such merges.

As the third kind of merges «conglomeratic merges» at which subjects are consolidated earlier not dependent and not connected between sobojhozjajstvujushchie act. According to the author, such merges first of all also should be settled the antimonopoly law for protection of the domestic commodity markets against the foreign companies.

Varlamovoj A.N. is called also other classification of merges and the absorption, coming under to the state control - "friendly" and "hostile" relations. As [52] "hostile" relations such relations which contradict interests of shareholders and societies act.

The state antimonopoly control over economic concentration is carried out in two forms: the preliminary control (ex ante) and the subsequent control (ex post).obe forms are directed on achievement of the same purpose, however differ on the bases and carrying out procedure.

The positive moment of the preliminary control is that the antimonopoly body analyzes a condition of the competitive environment and possible influence of the transaction or action on a competition before their actual fulfilment that essentially reduces possibility of approach of negative consequences.

Advantages контроляex postв present time up to the end are not studied. It is represented, that the notice of antimonopoly body after fulfilment of legally significant actions cannot protect a competition and the competitive environment how it becomes at the preliminary control. The negative consequences revealed by antimonopoly body after the notice on perfect action, can be ustranimy only with considerable losses both for managing subjects, and for economy or a society. Considering, that at the state subsequent control over a number of transactions of managing subjects, statutory about competition protection, there can be adverse consequences, such control is represented inefficient.

The conditional interdiction for fulfilment of certain actions and the transactions which are coming under to the preliminary control by antimonopoly bodies, is not identical to a conditional interdiction for anticompetitive agreements. At economic concentration the permission to fulfilment of actions or the conclusion of transactions accepts antimonopoly body whereas at a recognition of an admissibility of anticompetitive agreements the onus of proving lays on the managing subject.

Rules of carrying out of procedure of the control over economic concentration are established by administrative regulations FAS on execution of the state function as agreed creations and reorganisation of the commercial organisations in the cases provided by the antimonopoly law of the Russian Federation, approved Order FAS the Russian Federation. [53]

The managing subject documents and data for decision-making by the last under the petition of the applicant should be presented to antimonopoly body.

The antimonopoly body at decision-making carries out the perspective analysis of the competitive environment for revealing of possibility or impossibility of occurrence in the future ambassador of horizontal or vertical merge of the managing subject occupying a leading position, for revealing of possibility of an exception in the future of other managing subjects from the commodity market or for revealing of negative consequences after competition elimination mezhduhozjajstvujushchimi the subjects, intending to enter the conglomeratic

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Association. [54]

After analysis carrying out by antimonopoly body the decision on the permission or an interdiction for fulfilment of transactions or other actions by managing subjects is made.

As we have found out, the antimonopoly control over economic concentration can be in формеex post.

The closed list of cases of the notice of antimonopoly body about the concluded transactions or perfect actions contains in item 30 of the Law on competition protection. Thus ch. 2 specified articles are fixed by absence of necessity for the notice in cases when transactions have been concluded, and actions are executed, from the preliminary consent of antimonopoly body in the cases provided by other norms of the antimonopoly law.

The legislation in addition regulates the control over economic concentration in various spheres: for example, in the field of use water objects. So, the Governmental order of the Russian Federation from

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On April, 8th, 2009 N 314 Rules of control of economic concentration in the specified area are approved. According to item 4 of Rules the antimonopoly body should be notified:

179 Governmental order of the Russian Federation from April, 8th, 2009 N 314 «About the statement of rules of realisation of the state control over economic concentration in the field of use of water objects»//SZ the Russian Federation, 13.04.2009, N 15, item 1843.

1) about granting to the managing subject (group of persons) in using of a part of water area of water object if such subject (group of persons) receives the right of use more than 100 thousand sq. metres of water area of water object provided that earlier such person (group of persons) had no named right;

2) the person (group of persons) to whom (which) it is given in using not less than 100 thousand sq. metres of water area of water object, about reception in using of a part of water area of water object if the area of water area of the water object which is a subject of the transaction or interconnected transactions, other actions, exceeds 100 thousand sq. metres of water area of this water object;

3) the person (group of persons) about acquisition of voting actions of joint-stock company by the person (group of persons) disposing less than 50 percent of voting actions of this joint-stock company if as a result of such acquisition it is the person (group of persons) acquires the right to dispose more than 50 percent of such voting actions of the joint-stock company owning the right of use by a part of water area of water object which area exceeds the size provided by items 1 and 2 present classifications;

4) the person (group of persons) disposing less than 50 percent of a share in the charter capital of a society with limited liability, about acquisition of shares in the charter capital of this society with limited liability if as a result of such acquisition it is the person (group of persons) acquires the right to dispose more than 50 percent of the specified shares of a society with the limited liability, owning the right of use of a part of water area of the water object which area exceeds the size provided by items 1 and 2 present classifications;

5) the person (group of persons) about acquisition by it (them) as a result of one or several transactions (including on the basis of the contract of confidential management of property, contracts on joint cooperation or contracts of agency) the rights, allowing to define conditions of realisation by the person of enterprise activity or to carry out functions of its executive office if as a result of such acquisition it is the person (group of persons) acquires the right to supervise the person owning the right of use by a part of water area of water object which area exceeds the size provided by items 1 and 2 present classifications;

6) the person (group of persons) about merge or joining of persons if as a result of such merge or joining the newly founded or reorganised person (group of persons) receives the right of use of a part of water area of the water object which area exceeds the size provided by items 1 and 2 present classifications.

From described above follows, that the conditional interdiction for economic concentration differs from an interdiction for anticompetitive agreements under the maintenance. Anticompetitive agreements (except for the cases of an admissibility established by item 12 of the Law on protection of a competition) are forbidden while the managing subject will not present the proofs, allowing to draw a conclusion on an admissibility of such agreements (except for the agreements forbidden ch. 1 item 11 of the Law on competition protection), and some cases of concentration of economic activities are forbidden until while the antimonopoly body will not make the decision on the permission of the transaction or other action (is applied the is administrative-allowing method).

The carried out analysis of conditional interdictions for some kinds antikonkurentyh agreements, and also on transactions with economic concentration, and rules of application of positions about an admissibility of such transactions, the author comes to opinion on necessity of the three-level analysis of the agreements which parties are not direct competitors. First of all, at the analysis of such agreements criteria de minimis should come to light, that is be established a market share of managing subjects - the agreement parties, and real possibility of approach of economically harmful consequences, then are investigated actual economic-legal effect in the form of competition restriction, and, at last, possibility of a recognition of the is conditional-forbidden agreements admissible.

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A source: 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

More on topic §2. The is conditional-forbidden conditions of agreements managing Subjects:

  1. §1. Kinds of agreements between not competing managing Subjects
  2. § 1. Subject structure in agreements of managing subjects.
  3. §3. An admissibility of agreements of managing subjects.
  4. CHAPTER 3. AGREEMENTS BETWEEN NOT COMPETING MANAGING SUBJECTS. ILLEGAL COORDINATION
  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
  12. essence and the economic contents of integration of managing subjects
  13. §3. The agreement as a kind of legal activity of the managing Subjects.
  14. efficiency of integration of managing subjects and methodology of its estimation
  15. 3.3. Operational audit - the tool of support of competitiveness of managing subjects
  16. 5.3. Operational audit of efficiency of innovative development of managing subjects
  17. theoretical bases and principles of integration of managing subjects
  18. §2. Activity of managing subjects as object of antimonopoly regulation.