Limiting competition by customers through technical traps. When and how can competition be limited?

Establishing and maintaining a monopolistically high or monopolistically low price for a product.

Removal of a product from circulation if the result of such withdrawal was an increase in the price of the product

Imposing unfavorable contract terms on the counterparty

Economically or technologically unjustified reductions or cessation of production of a product if there was demand for the product

Economically or technologically unjustified refusal or avoidance of concluding a contract with individual buyers in the event of the possibility of production or supply of goods

Economically or technologically unjustified establishment different prices for the same product

Setting by a financial organization an unreasonably high or low price for a financial service

Creation of discriminatory conditions

Preventing other companies from entering or entering the market

Violation of pricing established by regulatory enactments

2) Agreements limiting competition or concerted actions of economic entities on the product market.

Concerted actions - a situation in the market when competing companies, without concluding an agreement to create a cartel, act in concert.

Moreover, the result of coordinated actions corresponds to the interests of each of the companies, provided that their actions are known in advance to each of them.

This does not apply to those actions of companies that are caused by the same circumstances for all companies (for example, changes in regulated tariffs or taxes, changes in prices for goods on world markets, significant changes in demand for goods, etc.)

Agreements restricting competition can be implemented by agreement in written or oral form. One of the most dangerous types of collusion is price collusion - an agreement between participants in one market industry to sell or buy goods or services at a certain price. Also, a cartel is a contractual regulation of the volume of purchases and sales by market participants in order to influence the price level. A group of market participants who are involved in collusion is often called a cartel. In a cartel, unlike other, more stable forms of monopolistic structures (syndicates, trusts, concerns), each enterprise included in the cartel retains financial and production independence.

The objects of the agreement may be: pricing, spheres of influence, sales conditions, use of patents, regulation of production volumes, coordination of product sales conditions, hiring of workers. Operates, as a rule, within one industry. The cartel impedes the functioning of market mechanisms.

Art. 11, 11.1 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition” establishes a ban on competition-restricting agreements and concerted actions of business entities.

Cartels are a particularly dangerous violation of antitrust laws, an economic crime that causes enormous harm to both consumers and businesses and the country’s economy as a whole.

Limit competition between market participants;

Lead to monopolization of production and sales of goods;

Result in the establishment of a single monopoly price for the product, mandatory for all participants in the agreement;

Suppress external competition from firms not participating in the agreement;

Result in higher than average profits at the expense of consumers

Main types of cartel agreements.

Price collusion (an agreement to set and maintain the same price for a product or service)

Conspiracy to divide the market (for example, on a territorial basis, when

one company sells goods only in the territory of one region, and the other - in the territory of a neighboring one, without competing with each other and without reducing prices)

Bidding collusion (when bidders agree among themselves who will

of them will win the auction and receive a government contract at the maximum price with subsequent redistribution of funds among themselves.

1. Restriction of competition by concluding a competition-restricting agreement (cartel) between competing economic entities, prohibited in accordance with antimonopoly legislation Russian Federation, if this act caused major damage to citizens, organizations or the state or resulted in the generation of income on a large scale -

shall be punishable by a fine in the amount of three hundred thousand to five hundred thousand rubles or in the amount wages or other income of the convicted person for a period of one to two years, or forced labor for a term of up to three years with deprivation of the right to occupy certain positions or engage in certain activities for a period of up to one year or without it, or imprisonment for a term of up to three years with imprisonment the right to hold certain positions or engage in certain activities for up to one year or without it.

2. The same acts:

a) committed by a person using his official position;

b) involving the destruction or damage of someone else’s property or the threat of its destruction or damage, in the absence of signs of extortion;

c) causing especially large damage or resulting in the extraction of income on an especially large scale, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by imprisonment for a term of up to six years with a fine in the amount of up to one million rubles or in the amount of wages or other income convicted for a period of up to five years or without it and with or without deprivation of the right to hold certain positions or engage in certain activities for a period of one to three years.

3. Acts provided for in parts one or two of this article, committed with the use of violence or with the threat of its use, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of one to three years, or imprisonment for a term of up to seven years with deprivation of the right to hold certain positions or engage in certain activities for a period of one to three years. three years.

Notes 1. In this article, income in a large amount is recognized as income the amount of which exceeds fifty million rubles, and income in an especially large amount - two hundred and fifty million rubles.

2. In this article, major damage is recognized as damage the amount of which exceeds ten million rubles, and especially large damage - thirty million rubles.

3. A person who has committed a crime under this article is exempt from criminal liability if he was the first among the accomplices to the crime to voluntarily report this crime, actively contributed to its disclosure and (or) investigation, compensated for the damage caused by this crime or otherwise made amends for the damage caused. and if his actions do not contain another crime.

Commentary to Art. 178 of the Criminal Code of the Russian Federation

1. Understanding the meaning of the term “competition”, you should refer to clause 7 of Art. 4 Federal Law dated July 26, 2006 N 135-FZ “On the Protection of Competition” (as amended on December 30, 2012), according to which competition is the rivalry of economic entities, in which the independent actions of each of them exclude or limit the ability of each of them to unilaterally influence on General terms circulation of goods on the relevant commodity market.
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NW RF. 2006. N 31 (part 1). Art. 3434; 2007. N 49. Art. 6079; 2008. N 18. Art. 1941; N 27. Art. 3126; N 45. Art. 5141; 2009. N 29. Art. 3601, 3610, 3618; N 52 (part 1). Art. 6450, 6455; 2010. N 15. Art. 1736; N 19. Art. 2291; N 49. Art. 6409; 2011. N 10. Art. 1281; N 27. Art. 3873, 3880; N 29. Art. 4291; RG. 2011. N 160; NW RF. 2011. N 48. Art. 6728; N 50. Art. 7343; 2012. N 31. Art. 4334.

In the concept of competition, special legal terms “economic entities” and “product market” are used. In the article being commented on, these terms are not used in the given form, although they talk about goods and simply about the market. The corresponding definitions are contained in paragraphs 4 and 5 of Art. 4 of the Federal Law “On Protection of Competition”.

In accordance with the Procedure for analyzing the state of competition in the product market, approved by Order of the FAS Russia dated April 28, 2010 N 220 (as amended on February 3, 2012), the geographical boundaries of the product market are determined, the concept of federal, interregional markets, etc. is given. Thus, actions leading to the prevention, restriction or elimination of competition and, further, to the infliction of major damage may consist, say, in restricting access to the local market, while the injured business entity will retain the opportunity to operate in the regional market .
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BNA. 2010. N 34; 2012. N 17.

2. In the Federal Law “On the Protection of Competition”, the triad of violations: prevention, restriction, elimination of competition is mentioned many times, but only the concept of restriction of competition is explained. Obviously, because it is the term “restriction” that, due to uncertainty, can cause problems in interpretation, while the prevention and elimination of competition are such results of illegal actions that either completely prevent the emergence of competition between economic entities (if prevented), or completely stop it (if elimination). Signs of restriction of competition are given in paragraph 17 of Art. 4 of the Federal Law “On Protection of Competition”.

3. The first type of prohibition, restriction or elimination of competition in Art. 178 of the Criminal Code refers to the conclusion of agreements restricting competition or the implementation of concerted actions restricting competition. Agreement, in accordance with paragraphs 18 and 19 of Art. 4 of the Federal Law “On the Protection of Competition” is an agreement in writing contained in a document or several documents, as well as an oral agreement; The concept of a “vertical” agreement is also given here.

On the concept of a cartel, see Art. 11 of the said Law.

4. Based on the indication of violence, destruction of property, and the threat of committing such actions among the qualifying features of the crime under discussion, it should be concluded that actions leading to intermediate (lack of, restriction of competition) and final (large damage, extraction of large-scale income) result, may go beyond the actual illegal anti-competitive agreements, concerted actions, but these actions: violence, etc. - must be carried out along with the actions (inaction) provided for in Part 1 of the commented article.

5. The second type of preventing, restricting or eliminating competition is repeated abuse of a dominant position, which is expressed in establishing and (or) maintaining a monopolistically high or monopolistically low price for a product, unjustified refusal or avoidance of concluding a contract, or restricting access to the market.

The concept of repeated abuse of a dominant position is given in paragraph 4 of the note. to the commented article. The wording “more than two times” means that the corresponding violation must be committed no less than the third time within three years (cf., for example, with paragraph “a” of Part 2 of Article 18 of the Criminal Code), and in order to attract criminal charges liability, it is not necessary that the abuses both the first and second times cause large damages or that as a result of their commission a large amount of income would be derived. However, for both the first and second abuses, the person must be brought to administrative responsibility.

The concept of monopoly high or monopoly low prices given in Art. Art. 6 and 7 of the Federal Law “On Protection of Competition”; that it is impossible to divide the market according to the territorial principle, the volume of sales or purchase of goods, the range of goods sold, or the composition of sellers or buyers (customers), the conclusion can be drawn from clause 3 of part 1 of Art. 11 and paragraph 3 of Art. 16 of the Law; on restricting access to the market - from clause 8 of Art. 4 Laws.

The conclusion that the refusal or evasion from concluding a contract is unfounded can be made taking into account the provisions contained in Art. 10 of the Federal Law “On Protection of Competition”, which establishes appropriate criteria for such an assessment. In particular, economically or technologically unjustified refusal or evasion from concluding a contract with individual buyers (customers) is prohibited if it is possible to produce or supply the relevant product.

6. Preventing, restricting or eliminating competition is an intermediate negative result of the actions listed in the commented article. It is intermediate in the sense that, in the end, the absence of economic rivalry (with the prevention or elimination of competition) or the presence of rivalry to a lesser extent than would have occurred without the illegal actions of the encroacher (with the restriction of competition) should itself lead to the infliction of major damage to citizens and organizations or the state or generating income on a large scale. Both characteristics are defined in the note. to the commented article.

7. Subjective side - direct or indirect intent. The latter means that the intent of the person does not necessarily cover the full range of persons who may be subject to major damage; the guilty person may not even know about some of them, but based on the nature of the illegal actions, it becomes clear that he allows these actions to cause major damage to all subjects (as it turns out). Consequently, such a person should be charged with any damage caused as a result of his obviously illegal actions.

8. The subject of the crime is special, he is individual entrepreneur, the head of a legal entity or a person authorized to perform actions on behalf of the legal entity.

9. On the concept of a person using his official position, see commentary. to Art. 174. For the concepts of destruction or damage to someone else’s property, as well as extortion, see commentary. to Art. Art. 167 and 163 of the Criminal Code.

Qualification of an act under Part 2 of the commented article on the basis of destruction and damage to someone else’s property does not require additional qualification under Art. 167 of the Criminal Code.

10. The concept of especially large damage and income on an especially large scale is given in the note. to Art. 178 of the Criminal Code.

Under violence in judicial practice not only physical impact is understood, but also its result in the form of pain or harm to health, physical impact associated with the restriction of his freedom (tying his hands, using handcuffs, leaving him in a closed room, etc.) (clause 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 27 .2002 N 29).

11. Torture, beatings, intentional infliction of light and moderate harm are covered by Part 3 of the commented article if they are associated with acts provided for in Parts 1 and 2 of this article and do not require independent qualification. However, the intentional infliction of grievous bodily harm or death under the same circumstances requires qualification in the aggregate: according to Part 3 of the commented article (even in the absence of other specially qualifying features of this crime, since violence was used) and, accordingly, Art. Art. 111 or 105 of the Criminal Code.

The threat of violence includes the threat of physical force with the aim of causing pain, any harm to health or death.

12. If a person, while committing a crime under the commented article, threatened to use violence, destroy or damage property, demanding to transfer someone else’s property or the right to property, as well as to commit other actions of a property nature, then such a threat requires qualification of the act not under Part 2 of the commented article. article, and according to Art. 163 of the Criminal Code (along with this, the act will also be qualified under the commented article without the specified qualifying criteria).

13. In paragraph 3 note. The article under comment provides for special grounds for exemption from criminal liability in connection with active repentance (Part 2 of Article 75 of the Criminal Code). According to the meaning of the law, a person, even if he has committed other crimes for which he will be held accountable, is certainly exempt from liability under the commented article if he fulfills the conditions specified in this note.

Since monopoly leads to suboptimal use of resources, government intervention can bring about significant improvements. In many cases, this is achieved through legal regulation alone. They contribute free access competitors to the market or even provide for the division of monopoly firms. In such cases, the role of the public sector is reduced to the activities of legislative and law enforcement bodies.

The situation is more complicated in a situation of natural monopoly.

An example would be a city water supply. Connecting the communications of several competing water supply companies to houses and apartments would mean increasing costs incomparably to a greater extent than the beneficial effect. Dividing a plumbing company into a number of independent divisions usually does not make sense either. It will not provide competition, since each of the divisions will have a monopoly in one of the city districts. At the same time, the costs of operating the water supply system, in particular management, are likely to increase.

Natural monopoly is based on economies of scale.

If marginal cost falls rapidly as production scale increases, concentration is economically efficient. If the economically optimal level of concentration is close to or exceeds the maximum market capacity, competition can only be artificially maintained by reducing production efficiency.

It should be recalled that limited competition, which does not ensure optimal use of resources, occurs not only when the market is completely controlled by a single producer, but also in more general case when a large manufacturer or intermediary is able to effectively influence the price.

It is important to emphasize the importance of the specific scale of the market, or, in other words, its capacity. In a small remote village, the services of a doctor, a teacher, and perhaps even a shoemaker have the properties of a natural monopoly. The appearance of a second doctor makes sense only if he is able to offer services on much better terms than the first. But in this case, the first will soon be forced out of a market that is not wide enough for two. As a result, the monopoly will be restored. If both offer services that are approximately the same in quality and prices, when demand could be completely satisfied by one, the situation is similar to duplication of water supply. Of course, the consumer would have the opportunity to choose, but this would be achieved by increasing costs compared to their necessary level.

In practice, control over a limited market is usually retained by the service provider who was the first to satisfy all the demand to an acceptable degree: the company that first built a water supply system, the doctor who managed to gain a reputation, etc. To capture a market that implies a natural monopoly, as a rule, significantly greater costs are required than to maintain it.

Natural monopoly is most often characteristic of service markets, since they cannot be transported and in most cases can only be sold to those consumers who are in direct contact with the manufacturer. Service providers are forced to work for limited market, often narrower than the optimal scale of concentration of production (there are exceptions to this rule, for example, television broadcasting, aviation and road transport, etc.).

Unable to overcome a natural monopoly without loss of efficiency, the state must choose one of two main approaches: use regulatory measures not to eliminate the monopoly, but to directly influence certain aspects of the monopolist's activities, or fill the areas of natural monopoly with enterprises, organizations and public sector programs. Regulation can be expressed, in particular, in establishing price limits or imposing various additional obligations on suppliers. For example, the well-known ATT company, whose position in the field of long-distance telephone communications in the United States was approaching a natural monopoly, was, by decision of Congress, not only obliged to provide services to everyone at prices set by the government, but also did not have the right to invade the markets for goods and services , not directly related to telephone communications.

The provision of various types of services by state and municipal authorities in situations of natural monopoly is a common practice in most countries of the world. This applies to many types utilities, subways, postal service, etc. A natural monopoly can be destroyed due to technological changes. For example, the development of modern transportation and communications has made consumers less dependent on traditional mail. Therefore, in a number of countries, regular mail, while remaining in the hands of the state, now competes with a number of other means of delivering correspondence in the hands of the private sector.

External effects

In an effectively functioning market, the producer cannot use resources without incurring costs in the amount of their opportunity cost, and the consumer is forced to fully pay the opportunity cost of each product. Only in this case is optimal allocation (means that the manufacturer ensures maximum profit with its pricing policy, while satisfying consumer demands for the quality and cost of products. From the point of view of the movement of production factors A. - there is movement economic resources ) resources, prices correspond to marginal utilities, and income adequately expresses the producer’s contribution to the development of the economy. Let us recall that opportunity cost is the potential return from the best of all those options for using a given resource (good), which were fundamentally possible, but remained unrealized.

If someone exploits limited resources without repaying their full value, the costs fall on other participants in economic life. In this case, there is a negative externality. This happens, for example, when an enterprise uses river water for free, polluting it, and those who live downstream are forced to invest in construction treatment facilities. At the same time, positive overflows are not uncommon beneficial effect. If, for example, a farmer built a road at his own expense connecting his farm to a highway, and residents of a neighboring village travel on this road for free, a positive external effect arises.

Examples allow us to understand that an enterprise whose activities generate negative external effects shifts part of the costs to others, and those who create positive external effects take on part of the costs of realizing other people's interests. At the same time, it is obvious that spillovers are always based on the explicit or hidden use (appropriation) of any resource without incurring costs in the amount of its opportunity cost.

Where there are negative externalities, there is a tendency towards relative overproduction and wasteful use of resources. Positive externalities result in underproduction, since for those who cause them through their activities, the results turn out to be inadequate to the costs.

Problems associated with externalities can be solved on the basis of adequately establishing the rights and responsibilities of participants in economic activities. In practice, this is usually achieved through the legislative and regulatory activity of the state. However, in many cases, it is more expedient to spend state resources not on creating cumbersome control mechanisms, but on directly performing functions that generate positive externalities, or on creating tax regulators for activities accompanied by negative externalities.

Instead of guaranteeing the collection of tolls from travelers for everyone who decides to build a road, the state can take full or partial responsibility for the development and operation of the road network, especially since in many cases this allows simultaneous resolution of the problems of both externalities and natural monopoly Externalities (external effect) in economics - the impact of a market transaction on third parties, not mediated by the market (This term was introduced in 1920 by Arthur Pigou in the book “The Theory of Welfare”. There are positive externalities, in which the utility or profit of agents not participating in the transaction increases, and negative ones, leading to a decrease in utility or profit of third parties. A classic example of a positive externality is the interaction of nearby apiaries and apple orchard: bees help increase the yield of apples, and apple trees help increase the collection of honey, while their owners do not enter into any market relations with each other. An example of a negative externality is pollution environment industrial enterprises when an increase in the profit of an enterprise as a result of increasing production results in damage to the environment).

Due to the fact that the presence of external effects is not taken into account by the market, in their presence the market equilibrium ceases to be Pareto efficient, i.e. a market fiasco occurs. An alternative to outright bans on water pollution is to tax environmentally harmful industries at rates that encourage businesses to avoid adverse impacts on the natural environment.

The state, as a rule, cannot remain indifferent when faced with significant externalities. But the choice of the optimal form of intervention is not carried out according to a template. It is determined by the specifics specific situation and practical expediency. In the public sector, as in the private enterprise, it is necessary to carefully compare different variants solving a problem, trying to achieve a result with the least cost.

Incomplete information

The functioning of the market depends decisively on the extent to which participants in transactions have information about the consumer properties of goods and services, alternative possibilities for their production and acquisition, as well as trends in market conditions. Incomplete information limits the possibilities for efficient use of resources, causing suboptimal behavior of sellers and buyers. It often limits competition and prevents the conclusion of long-term deals.

Information problems underlie the phenomenon of incomplete markets. This refers to situations where the needs for certain types of services cannot be satisfied because potential producers would have to act in conditions of excessively high uncertainty. An adequate offer does not appear in response to requests from potential consumers. Accordingly, the market mechanism is unable to realize potential Pareto improvements.

Insurance is often cited as an example. bank deposits. Without government guarantees, as a rule, it cannot be implemented effectively enough on the basis of the free action of market forces. At the same time, the absence of a deposit insurance market negatively affects the state of other markets and the allocation of resources in general.

A common practice for countries with developed market economies is the participation of the state in the formation of the market information infrastructure. It is worth noting that the dissemination of information needed by producers and consumers is an example of an activity that generates positive externalities.

In an ideal, perfectly competitive market, both sellers and buyers enjoy unlimited and free access to all the information they need. In real markets no one has complete information, but at the same time, the availability of its most significant part for sellers and buyers can be approximately the same, which prevents excessive distortions and dictates of one of the parties. Of course, the shoe seller is familiar with the technical details of its production, as a rule, better than the consumer, but the latter can inspect and try on the purchased product. In addition, his interests are protected by standards and guarantees of manufacturer responsibility, in case of violation of which he can appeal to the state. Thus, the shoe buyer is able to sufficiently evaluate the consumer qualities of a product before paying for a purchase, and if some critical information was hidden from the consumer, the state is able to achieve full compensation for damage through legal regulation measures alone.

However, markets for some goods and especially services are characterized by significant information asymmetry, that is, the uneven distribution of information necessary to make decisions about purchases and sales. In conditions of information asymmetry, information essential for concluding a transaction is at the preferential disposal of one of its participants.

Classic examples of information asymmetry are provided by the healthcare sector, although this phenomenon is typical for many other areas. In most cases, the patient is not able to independently make a diagnosis, choose treatment methods, and even evaluate how rationally it is being carried out. In other words, the consumer cannot decide what specific service is needed to satisfy his need and what is the quality of the services actually provided. He is forced, in fact, to rely in everything on the manufacturer (doctor), who, thanks to his professional training, has the necessary information. An analogy would be a situation where the buyer only knows that he needs shoes, and completely trusts the seller to choose the style, size and price.

If medical care were provided exclusively on a private enterprise basis, and doctors were focused primarily on maximizing income (profit), they would be inclined to constantly impose on patients the most expensive, often redundant, and not always high-quality services. Elements of such practice are indeed found in countries where the regulatory role of the state in providing medical care relatively poorly represented. Patients are able to protect their interests by hiring independent consultants and paying for the expertise of the medical services provided, but this entails increased costs.

Information asymmetry is more typical for certain branches of the service sector than for the production of goods, since the purchase and sale of a service, as a rule, precedes its provision. The buyer is forced to make a decision to purchase a service before its specific beneficial properties are manifested. This is not too significant if the services are amenable to strict standardization, and their consumer qualities are clear and can be assessed quite objectively and unambiguously. However, in healthcare and some other industries, evaluation of services requires high degree competence.

Where information asymmetry threatens the dictates of the producer, the public sector often takes over the provision of services. As with other market failures, this is justified insofar as it assumes that the public sector is subject to extra-market control by interested citizens.

Indeed, if, due to information asymmetry, the consumer is unable to protect his interests through market mechanisms as a buyer, he may try to do the same through public sector governance mechanisms as a voter. The question, however, is to what extent the public sector is controlled by ordinary voters and how successfully it satisfies their real needs. This problem must be constantly kept in mind when determining rational forms and methods of functioning of the public sector.

Non-profit organizations

In areas of market failure, enterprises' concern for maximizing their own profits does not guarantee the efficient use of resources. It was shown above, in particular, that natural monopoly and significant positive externalities give rise to a tendency towards underproduction of the corresponding goods (compared to the optimal level), and negative side effects and poor consumer awareness often result in excessive production and consumption of a particular good due to the excessive involvement of resources in the industry or its division. Along with allocative inefficiency (non-optimal allocation of resources), technological inefficiency (the so-called X-inefficiency) often arises, i.e. unreasonably high consumption of resources per unit of production. This is especially true for situations involving incomplete information, which are not discussed in detail here. The deviation of sales levels and costs from optimal values ​​assumes, of course, that prices, in turn, do not coincide with those that would be established in the presence of perfect competition.

An organization operating in a market environment must cover its expenses with income, and strict administrative regulation of these incomes is in most cases unjustified. If it is necessary to weaken the interest in profit, it is preferable, as a rule, to limit not the possibility of revenues exceeding costs or even the size of such an excess, but only the right to distribute the corresponding amounts among the persons determining the organization's strategy. In this case, profit can be generated, but it should be completely spent on the needs of the organization itself, for example, on the construction of new buildings, the purchase of equipment, etc.

Fixed profile (mission) and ban on profit distribution - distinctive features non-profit organizations.

For example, a non-profit university in a developed market economy has various sources of income, from charitable donations to revenue from the sale of services. Prices for some services may not cover the costs of providing them. This often refers to the tuition fees that students pay (if such fees apply). Other services, such as conducting research for businesses, can be profitable. In order to ensure the economic well-being of the university, total income from all sources must exceed current expenses, otherwise it would not be possible to finance the development of the organization and form reserve funds. However, the founders of the university, even if they are private individuals or enterprises, do not have the right to turn free funds into their income, as long as the university has a non-profit status. In this respect there is an obvious contrast with, for example, joint stock company which operates to pay dividends. In addition, a non-profit university may be limited in the right to engage in activities that are not its core, that is, not directly related to teaching and research.

Non-profit organizations most often are educational institutions, hospitals, fundamental research centers, symphony orchestras, museums, as well as religious organizations, charitable foundations, etc. All of them, being subjects of a market economy, care about their own income, but their economic interests are subordinated the desire to realize their specific missions as fully as possible. To achieve this, the economic interests of non-profit organizations are deliberately placed within a relatively narrow framework, and the formation of the strategy of their activities and general control over its implementation are entrusted to those who cannot receive personal benefit from maximizing profits, but are interested in the prestige of the organization and successful completion her mission.

As a result non-profit organizations less inclined than enterprises to exploit market flaws to the detriment of the consumer. For example, a non-profit university, even if it is in a monopoly position, is inclined, when determining the optimal number of students, to compare average rather than marginal costs and income, and therefore, other things being equal, will admit more applicants and set lower tuition fees, how educational institution oriented towards making a profit. Hospitals are less likely to abuse information asymmetries if they are not seeking to maximize profits, etc.

In addition, non-profit organizations carrying out socially significant missions are generally characterized by the use of tax benefits. From a budgetary point of view, such benefits represent lost funds, and therefore, in a certain sense, are equivalent to public expenditures. Therefore, even those non-governmental non-profit organizations that, at first glance, are not associated with the public sector and do not experience its direct impact, are often significantly integrated into it through tax benefits.

At the same time, non-governmental non-profit organizations are the closest competitors of the public sector in many areas of activity related to market flaws.

3. Scale of the public sector

The resources with which the state participates in public life are, on the one hand, everything that it is the owner of, and on the other, budget revenues and expenses. In the first case we are talking about the stock of resources, in the second - about their flow. This kind of double characteristic of economic potential is inherent, generally speaking, in any economic entity, and the share of a private individual or firm in the total stock of resources of the nation, as a rule, is approximately equal to the share of their income in the national income, according to at least in the long term. After all, the flow of resources (income) in a certain sense is generated by their stock (physical or human capital) and in an effectively functioning market economy is distributed in accordance with factor contributions. The peculiarity of the state is, however, that, using the legal right of coercion, it systematically carries out redistribution, therefore the share of the public sector in the national income, as a rule, differs significantly from its share in the total capital.

In advanced market economies, there is usually a consensus that income rather than factors of production should be redistributed, which should be held primarily by the private sector. Accordingly, the share of the public sector in the income and expenses of society in most cases exceeds its share both in the total capital and in the production of goods and services sold on the market.

As a direct supplier of goods and services, the public sector, as a rule, occupies a strong position primarily in such industries as education, healthcare, culture, transport and communications, energy, utilities and some others. State-owned enterprises and organizations play a leading role in the provision of postal services, rail and air transport (exceptions are the USA and to a lesser extent Japan), and in a number of countries, for example in the UK, Germany, Italy, the Netherlands, France, and in the electric power industry. In some countries, the public sector is relatively well represented even in the manufacturing industry. This applies, in particular, to the steel industry of Austria, Italy, France, Sweden, the British, Dutch and French automobile industries, and the shipbuilding industry of Great Britain, Italy, Spain, and Sweden.

However, as follows from the previous presentation, the direct supply of goods and services to the market, although important, is still not the main form of participation of the public sector in economic life. The role and scale of this sector are most concentratedly expressed not by its share in the total capital or the mass of goods produced for sale, but rather by its specific weight government revenues and expenditures in national income, gross national product, or gross domestic product.

In table 1.1 presents data on the share of total public sector expenditures in the gross national product of 16 countries, and Fig. 1-1 - trends in this share in six countries

Table 1.1

Share of total government spending in gross domestic product

Restriction of competition

Restriction of competition in procurement within the framework of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services certain types legal entities"can be considered justified if it does not contradict the provisions of the Procurement Regulations and is explainable by the actual needs of the customer.

As one of the principles, Law 223-FZ proclaims the absence of unreasonable restrictions on competition in relation to procurement participants (clause 2, part 3, article 3). At the same time, neither the law nor any of the existing regulations defines what constitutes “reasonableness” of a restriction of competition. And the question is extremely important, since any requirement set by the customer Always limits competition by cutting off offers that do not meet the stated requirement. It is good if the peculiarities of the market for the purchased products are such that there are requirements arising from legislation (types of activities that require a license or approval, the presence of technical regulations for products, etc.). But what if there is no such justification?

If we approach it from a theoretical perspective, the answer is contained in Article 2 of the Law: “1. When purchasing goods, works, and services, customers are guided by the Constitution of the Russian Federation, Civil Code of the Russian Federation, this Federal Law, other federal laws and other regulatory legal acts of the Russian Federation, as well as legal acts regulating procurement rules adopted in accordance with them and approved taking into account the provisions of Part 3 of this article (hereinafter referred to as the procurement regulations). 2. The procurement regulations are a document that regulates the procurement activities of the customer and must contain procurement requirements, including the procedure for preparing and conducting procurement procedures (including procurement methods) and the conditions for their application, the procedure for concluding and executing contracts, as well as other provisions related to ensuring procurement».

But we must not forget about Part 1 of Article 17 of the current Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition”:

1. When conducting bidding, requesting price quotes for goods (hereinafter referred to as request for quotation), request for proposals actions are prohibited, which lead or may lead to prevent limitation or elimination of competition, including:

1) coordination by the organizers of the auction, request for quotations, request for proposals or customers of the activities of their participants;

2) creating for a trading participant, request for quotation, request for proposals or for several trading participants, request for quotation, request for proposals preferential conditions for participation in the tender, request for quotation, request for proposals, including through access to information, unless otherwise established by federal law;

3) violation of the procedure for determining the winner or winners of the auction, request for quotations, request for proposals;

4) participation of organizers of bidding, request for quotations, request for proposals or customers and (or) employees of organizers or employees of customers in bidding, request for quotations, request for proposals.”

A literal reading of the norm can lead to the absurd conclusion that it is impossible to establish any requirements either for the procurement participant, or for the products, or for the terms of the contract, because, as stated above, any requirement always limits competition.

What to do?

Analysis of arbitration practice recent years shows that courts do not apply such a literal interpretation. At the same time, establishing requirements that contradict the procurement regulations leads to the loss of the case in arbitration court in the event of a complaint. Thus, if the regulation states that requirements for experience or resource availability can only be presented for purchases above a certain amount, an attempt to present qualification requirements for purchases below this amount will already be illegal. The experience of considering cases in the Federal Antimonopoly Service shows that no one has abolished such a subjective concept as “ reasonableness of the requirement" That is, if the demand presented does not in any way arise from the subject of the procurement or the draft contract, if there is a complaint to the FAS Russia, the customer will most likely be found to have violated the law.

What should I do?

When assigning any requirement, the customer must remain within the framework of the procurement regulations and carefully ensure that no norms on the procedure for assigning requirements or on permissible limits (if applicable) are formally violated. If the enterprise has documents such as a technical policy, and the quality policy and requirements follow from them, then it will always be easier to prove the validity of the requirements. In this case, it is advisable to directly mention in the procurement regulations that when assigning requirements, the customer has the right to use the above-mentioned documents. And in any case, it is advisable to coordinate or approve the assigned requirements by the competent authority - the procurement commission or expert group. Experience suggests that with this approach, the likelihood of receiving disputed claims is sharply reduced.

And one last thing. When assigning requirements to participants, one must not forget that they must be “measurable” (clause 4, part 1, article 3 of Law 223-FZ). There is also no unambiguous interpretation of this term, but procurement experience shows that unambiguously “measurable” requirements are those that are either numerical or confirmed by a document not issued by the customer (license, approval, etc.).

Article 3. Principles and basic provisions of the procurement of goods, works, services

1. When purchasing goods, works, and services, customers are guided by the following principles:

1) information openness of procurement;

2) equality, fairness, absence of discrimination and unjustified restrictions on competition in relation to procurement participants;

Competition is the rivalry between economic entities. Actions of any enterprise that create obstacles to the participation of other companies in trade turnover are not allowed on the market. Previously general order behavior on the market was established by the relevant regulatory act No. 948-I "On competition and restriction of monopolistic activities"from 1991. However, due to the changed economic situation, it was canceled. Instead, another one is in force (No. 135 of 2016). Let us consider the features of the application of its provisions.

Restriction of competition

The signs of this phenomenon are provided for in normative act No. 135. How is it characterized restriction of competition? Article 4 specified normative act contains the following features:

1. Reducing the number of economic entities that do not belong to the same group of persons.
2. A decrease or increase in the cost of a product that is not caused by changes in the conditions of circulation of products on the market.
3. Refusal of economic entities not belonging to the same group to act independently.
4. Definition general rules trade turnover on the market by agreement between participants or on the basis of instructions from one person, or when enterprises coordinate their actions.

In the course of the activities of economic entities, other factors may arise that create the opportunity for any company or several companies to influence the conditions of commodity circulation unilaterally. For example, relevant circumstances may arise during a municipal or state procurement. Restriction of competition in such cases, it is expressed in the establishment by local or state authorities of requirements for economic entities or goods that are not provided for by regulations.

Prohibitions

According to the normative act on competition and restrictions on monopolistic activities, agreements or concerted actions of enterprises on the market are not allowed if they can lead or have caused:

1. Maintaining/establishing tariffs/costs, surcharges, discounts.
2. Reducing, increasing, maintaining prices at auction.
3. Division of the market by sales volume, territorial basis, product range, composition of customers/buyers or sellers.
4. Technologically or economically unjustified refusal to carry out transactions, unless it is expressly established by regulations.
5. Imposing on the counterparty conditions that are unfavorable for him or are not related to the subject of the contract.
6. It is technologically, economically or otherwise not justified to establish different prices for one product.
7. Termination/reduction of production of products for which there is demand or for the supply of which orders have been placed when it is possible to produce them profitably.
8. Creating barriers to entry or exit from the market for other firms.
9. Establishing conditions for participation/membership in professional or other associations, if this leads or may lead to the prevention, elimination, establishment of unreasonable criteria for membership that act as an obstacle to participation in payment or other systems, without which entities competing with each other are unable provide the required financial services.

Methods

Restriction of competition can be done in different ways. The most common methods include:

1. Abuse of dominant position.
2. Drawing up agreements or coordinating actions by enterprises in order to influence the state of the market.

In the first case it is expressed as:

1. Establishing/maintaining high/low cost of production.
2. The removal of a product from circulation, resulting in an increase in its price.
3. Imposing unfavorable terms of a transaction on a counterparty.
4. Unreasonable reduction/termination of production if there is demand for it.
5. Setting unreasonably high prices for financial services provided.
6. Creating a discriminatory environment in the market.
7. Formation of obstacles for other enterprises to access or exit trade turnover.
8. Violation of pricing established by regulations.

Concerted action

Law on Competition and Restriction of Monopoly sphere establishes a ban on the creation of a market situation in which rival firms, without formalizing an agreement to form a cartel, act together. Moreover, the results of such behavior are in the interests of each enterprise if they inform each other about the decisions made. It should be taken into account that actions caused by the same circumstances for firms do not act as a restriction of competition. For example, changes in the cost of products on the world market, regulated taxes/tariffs, and demand for goods.

Illegal Agreements

As such, the normative act of the sphere considers contracts in accordance with which:

1. Market participants set certain prices for the purchase or sale of products.
2. The volume of sales and purchases of products is regulated to influence its cost.

Thus, the object of agreements can be:

1. Conditions of implementation.
2. Pricing.
3. Use of patents.
4. Spheres of influence.
5. Regulation of production volume.
6. Coordination of product sales rules.
7. Hiring workers.

Exceptions

In some cases, the rules allow justified restriction of competition. By 223 regulatory act (dated July 18, 2011), it is permitted if it is determined by the real needs of the customer. At the same time, the actions of economic entities should not contradict the Regulations on the acquisition of services, works, and products by individual legal entities.

Difficulties

Thus, the main condition for allowing a restriction of competition is justification. Not a single legal act in force in the country covers this concept. Meanwhile, this question is very important. Its relevance is determined by the fact that any requirement set by the customer will always limit competition, excluding proposals that do not meet it. The issue will be resolved without any particular difficulties if the specifics of the market are such that there are requirements arising from the provisions of the law. For example, they may be related to mandatory licensing, the presence of technical regulations for products, and so on. Problems arise in cases where there are no requirements in regulations.

If we consider the question from a theoretical perspective, the answer to it can be found in Art. 2. In accordance with it, when purchasing services, products, works, customers are guided by constitutional principles, the Civil Code, and other regulations. The latter, in particular, includes the Regulations regulating the procedure for carrying out transactions. It acts as a document regulating procurement requirements, rules for organizing and conducting procedures, execution and execution of contracts and other conditions.

Controversial point

When considering the validity of restrictions on competition, it is necessary to take into account the provisions of regulatory act No. 135. In Art. 17, part 1 establishes a number of prohibitions. In particular, during bidding, request for quotations, proposals, the following are not allowed:

1. Coordination of participants’ activities by organizers/customers.
2. Creating preferential conditions for someone, including by providing access to information, unless otherwise provided by regulatory documents.
3. Violation of the procedure for identifying the winner.
4. Participation of organizers, customers, and their employees in requesting quotations, proposals or bidding.

With a literal interpretation of the above requirements, it becomes clear that it is impossible to establish any requirements for products, participants, or terms of agreements, since any of them will restrict competition.

Solving the issue in practice

As the analysis of arbitration cases shows, courts do not use a literal interpretation of the provisions. At the same time, establishing requirements that do not comply with the Regulations leads to the loss of disputes regarding complaints. For example, this document stipulates that certain conditions are provided only in the case of purchases in excess of any amount. Presentation qualification requirements below it will be illegal. In cases considered FAS, restriction of competition used in conjunction with the concept of reasonableness. If the requirement that the customer sets does not arise from the subject of the transaction or the draft contract, if there is a complaint from the counterparty, his actions will most likely be regarded as a violation.

When establishing any requirement, the customer must remain within the limits of the Regulations. He must ensure that no norm is formally violated. If the organization has such local acts, as a technical policy, and the requirements, including quality, follow from it, then it will be easier to prove the validity of the conditions. Experts also recommend coordination with competent structures. They can be a procurement commission or an expert group.

When defining requirements, one should not forget about their “measurability”. There is no unambiguous definition of this concept. However, practice shows that requirements that are either numerical or supported by documents not provided by the customer will be considered measurable. The latter include admission, license, and so on.

Restriction of competition under 44-FZ

Art. 8 of this normative act establishes the principle of competition. The norm guarantees any interested parties the opportunity to participate in procurement. In paragraph 2 of Art. 8 talks about prices. The provisions establish the principle of competitive cost, non-price competition in order to identify the best purchasing conditions. In case of violation of norms, as well as when unreasonable demands are put forward to participants, actions taken by customers that contradict federal legal acts, responsibility is provided.

Cartels

They are considered one of the most dangerous violations of antitrust laws. Cartel collusion is an economic crime. It causes damage to consumers, enterprises, and the entire national economic complex of the country as a whole. Cartels:

1. Lead to market capture by certain entities.
2. Limit competition.
3. They entail the establishment of one cost of production that is obligatory for the parties to the agreement.
4. Suppress external competition (they do not allow companies that are not participating in the agreement to enter the market).
5. They entail the extraction of higher than average income at the expense of consumers.

Prohibitions for authorities

Current legislation does not allow the adoption of acts, commission of inactions/actions by competent authorities, providing for:

1. Introduction of qualifying requirements for the procedure for creating enterprises.
2. Establishment of prohibitions or restrictions on the conduct of certain types of activities or the production of certain types of products.
3. Creation of unreasonable obstacles to the work of companies.
4. Establishing bans or restrictions on the free movement of products across the territory of the Russian Federation, their acquisition, sale, and exchange.
5. Instructions to economic entities on priority deliveries for certain categories of consumers/customers or on signing contracts as a priority.
6. Establishing restrictions on the choice of enterprises for buyers.

Criminal liability

Punishment for restricting competition is established if it caused major damage to organizations, citizens, the state, or allowed the violator of the rules to derive income on a large scale. Sanctions for this act are established by Art. 178 of the Criminal Code. The corpus delicti is considered material. The act will be considered completed if the consequence of the restriction of competition is major damage.

The purpose of the crime is to minimize or complete elimination competition of economic entities. A variety of methods for limiting competition can be used. As a rule, real obstacles are created for other economic entities to enter the market or conditions are created under which their participation in trade turnover becomes minimal.