Problems of Application of Norms Prohibiting the Abuse of Dominant Position

During the last decade, the activities of antimonopoly authorities have been subjected to considerable criticism. The norms prohibiting the abuse of a dominant position are fundamental in the antimonopoly legislation, which actualizes the consideration of this issue. The author examines the evaluation of legislative norms from the point of view of the effectiveness of their application in decisions of courts and antimonopoly authorities. Usefulness of norms prohibiting the abuse of a dominant position, cost-effectiveness of their implementation and uniformity of practice of their application serve as the criteria for the study of legislative norms. Based on the analysis of regulatory legal acts, judicial practice, practice of antimonopoly authorities and doctrine, the author identifies a number of difficulties in the enforcement of the current antimonopoly legislation in the Russian Federation. The increase in the burden of proof for antimonopoly authorities that reduces the effectiveness of the application of these norms forms one of the key problems. Moreover, the lack of uniformity in court decisions, antimonopoly authorities, decisions of the Supreme Court of the Russian Federation and the FAS of Russia leads to difficulties in interpreting the norms and their application in subsequent cases. The article highlights the decrease in the effectiveness of the norms due to their excessive detailing by subordinate acts, which leads to ambiguity of antimonopoly norms. The result of the analysis is that the legislation and the system of antimonopoly authorities have not achieved the results that were originally set before them at the time of their foundation. The author examines the current situation and comes to the conclusion that it is necessary to reform the norms of competition law. The issue has been discussed at international forums and conferences and it is still relevant. The authors propose their own options for improving the operation of antimonopoly norms, including the ideas of consolidating the existing practice of courts and antimonopoly authorities and the possibility of implementing foreign designs into the Russian legal system.

1. Varlamova AN. Pravovoe obespechenie razvitiya konkurentsii: uchebnoe posobie [Legal support for the development of competition]. Moscow: Statut Publ.; 2010. (In Russ.).

2. Egorova MA. Osobennosti zloupotrebleniya dominiruyushchim polozheniem i nedobrosovestnoy konkurentsii kak raznovidnostey antikonkurentnykh deystviy [Features of abuse of dominant position and unfair competition as varieties of anticompetitive actions]. Actual Issues of Modern Competition Law: Collection of Articles. Moscow: Justitsinform Publ.; 2019. (In Russ.).

3. Abrosimova EA, Belov VA. (eds.) Kommercheskoe pravo [Commercial Law]. Moscow: Yurait Publ.; 2021. (In Russ.).

4. Egorova MA, Kinev AYu. (eds.) Konkurentnoe pravo [Competition Law]. Moscow: Justitsinform Publ.; 2018. (In Russ.).

5. Lazarev VV. Effektivnost pravoprimenitelnykh aktov. Voprosy teorii [The effectiveness of law enforcement acts. Questions of theory]. Kazan: Kazan University Publishing House; 1975. (In Russ.).

6. Lebedev MP. Gosudarstvennye resheniya v sisteme upravleniya sotsialisticheskim obshchestvom [State decisions in the management system of a socialist society]. Moscow: Yuridicheskaya literatura Publ.; 1974. (In Russ.).

7. Scientific and Practical Conference «Antimonopoly Disputes: Theory And Practice.» Legal Academy. Available at: https://legalacademy.ru/course/2400735 [Accessed 01.08.2022]. (In Russ.).

8. Application of Antimonopoly Legislation in Modern Economic Conditions. Legal Academy. Available at: https://legalacademy.ru/course/10476 [Accessed 01.08.2022]. (In Russ.).

9. Hirsh EE. Das Recht im sozialen Ordnungsgefuge Welstberlin. Leipzig; 1966.