No way. If an agreement cannot be reached, the Employee can submit Applications (2 copies each) to the State Labor Inspectorate of the city, the Federal Tax Service Inspectorate (tax office), the Prosecutor's Office, but it is better to go straight to the District Court (not subject to state duty) with a Statement of Claim (3 copies), from the Prosecutor's Office and State Inspectorate labor is usually of little use. The employee may refer to documents, witness statements and the Resolution of the Plenum Supreme Court Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation Labor Code Russian Federation".
For information:
Quote: Article 80 of the Labor Code of the Russian Federation. Termination employment contract at the initiative of the employee (by at will) On the last day of work, the employer is obliged to issue the employee a work book and other documents related to work, upon the employee’s written application, and make a final payment to him. Article 234 of the Labor Code of the Russian Federation. The employer's obligation to compensate the employee for material damage caused as a result of illegal deprivation of his opportunity to work. The employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of: illegal removal of an employee from work, his dismissal or transfer to another job; the employer's refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to previous job; delays by the employer in issuing to the employee work book, entering into the work book an incorrect or non-compliant wording of the reason for the employee’s dismissal. Article 236 of the Labor Code of the Russian Federation. Financial liability of the employer for delay in payment wages and other payments due to the employee If the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one three hundredth of the current at this time refinancing rates Central Bank of the Russian Federation from unpaid amounts on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive. The amount of monetary compensation paid to an employee may be increased by a collective agreement, local regulation or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault. Article 237 of the Labor Code of the Russian Federation. Compensation for moral damage caused to an employee Moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract. In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation. Article 391 of the Labor Code of the Russian Federation. Consideration of individual labor disputes in the courts The courts consider individual labor disputes at the request of the employee, employer or trade union defending the interests of the employee, when they do not agree with the decision of the labor dispute commission or when the employee goes to court without going through the labor dispute commission, as well as at the request of the prosecutor, if the decision of the labor dispute commission does not comply with labor legislation and other acts containing standards labor law. Individual labor disputes are considered directly in the courts on the basis of applications from: an employee - for reinstatement at work, regardless of the grounds for termination of the employment contract, for changing the date and wording of the reason for dismissal, for transfer to another job, for payment for the period of forced absence, or for payment of the difference in wages during the performance of lower-paid work, about unlawful actions (inaction) of the employer when processing and protecting the employee’s personal data; employer - on compensation by the employee for damage caused to the employer, unless otherwise provided federal laws. Individual labor disputes are also heard directly in the courts: refusal to hire; persons working under an employment contract with employers - individuals who are not individual entrepreneurs, and employees religious organizations; persons who believe that they have been discriminated against. Article 392 of the Labor Code of the Russian Federation. Time limits for applying to court for resolution of an individual labor dispute An employee has the right to apply to court for resolution of an individual labor dispute within three months from the day he learned or should have learned about a violation of his rights, and in disputes about dismissal - within one month from the day of delivery of a copy of the dismissal order to him or the day of issue of the work book. The employer has the right to go to court in disputes regarding compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused. If, for good reason, the deadlines established by parts one and two of this article are missed, they may be restored by the court. Article 393 of the Labor Code of the Russian Federation. Exemption of employees from legal costs When filing a claim in court for claims arising from labor relations, including regarding non-fulfillment or improper fulfillment of the terms of the employment contract, which are of a civil nature, employees are exempt from paying fees and legal costs.
Article 145.1 of the Criminal Code of the Russian Federation. Non-payment of wages, pensions, stipends, benefits and other payments 1. Partial non-payment of wages, pensions, stipends, benefits and other payments established by law for more than three months, committed out of selfish or other personal interest by the head of the organization, the employer - an individual, the head of a branch , representative office or other separate structural unit of an organization - is punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to one year, or by deprivation of the right to hold certain positions or engage in certain activities for a period of up to one year, or forced labor for a term of up to two years, or imprisonment for a term of up to one year. 2. Complete non-payment of wages, pensions, scholarships, allowances and other payments established by law for more than two months or payment of wages for more than two months in an amount lower than that established by federal law minimum size payments made out of mercenary or other personal interest by the head of an organization, the employer - an individual, the head of a branch, representative office or other separate structural unit of the organization - is punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three years, or forced labor for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without it, or imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities activities for a period of up to three years or without it. 3. Acts provided for in parts one or two of this article, if they entailed grave consequences, are punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to three years, or by imprisonment. for a term of two to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years. Note. In this article, partial non-payment of wages, pensions, scholarships, benefits and other payments established by law means payment in the amount of less than half of the amount payable.
Article 10 of the Federal Law "On the Prosecutor's Office of the Russian Federation". Consideration and resolution of applications, complaints and other appeals in the prosecutor's office 1. The prosecutor's office, in accordance with their powers, resolves statements, complaints and other appeals containing information about violations of laws. The decision made by the prosecutor does not prevent a person from going to court to protect his rights. A decision on an appeal against a sentence, decision, determination and order of the court can only be appealed to a higher prosecutor. 2. Applications, complaints and other appeals received by the prosecutor's office are considered in the manner and within the time limits established by federal legislation. 3. The response to an application, complaint or other appeal must be motivated. If the application or complaint is refused, the applicant must be explained the procedure for appealing the decision, as well as the right to go to court, if provided for by law. 4. The prosecutor, in accordance with the procedure established by law, takes measures to bring to justice persons who have committed offenses. 5. It is prohibited to forward a complaint to the body or official whose decisions or actions are being appealed.
Sincerely, Mikhailovsky Yuri Iosifovich. urist-prava.
My YouTube channel: http://goo.gl/Crfv3z
Structure- This such an arrangement of elements and connections of illegal activity that ensures its preservation of objectively necessary properties (integrity), which serve as the actual basis for the application of measures of social and legal protection and legal liability.
Illegal activity is a polystructural formation. So, genetic structure reveals the connections between individual elements and illegal activities as a whole with economic and political, social and spiritual, national and other prerequisites for social life. Functional structure shows connections between separate elements illegal activity, the effectiveness of the functioning of each of the elements (the delinquent, the means he uses, etc.) and criminal activity in general.
Logical (logical-philosophical) the structure makes it possible to reflect the relationships between elements and the system, parts and the whole, content and form of illegal activity. As in any legal activity, here, first of all, you need to highlight its internal and external components (elements, sides).
Elements external (objectified) side of illegal activity we have already highlighted in § 1 of this chapter (see paragraph 2). Let's take a closer look at some of them.
Subjects of illegal activities– these are specific people (individuals), their teams and organizations that commit illegal actions and operations. In this capacity, abstracting from the psychological mechanism of their behavior, they appear as elements of its external side.
They can be grouped into separate types, species and subspecies. Thus, depending on the place and role of delinquents in a specific illegal activity, they are divided into organizers, instigators, accomplices and perpetrators.
According to the degree of community and social organization of offenders, individual and collective subjects are distinguished. Individual subjects of illegal activities, depending on their political and legal connection with a specific state, are divided into citizens (nationals), foreigners, stateless persons (stateless persons), bipatrids (persons with dual or more citizenship).
Social communities (for example, labor collectives), movements (environmental) and organizations (state and non-state, representative and executive, religious, etc.) act as collective subjects of illegal activities.
By “industry” affiliation, one can distinguish subjects of crimes, administrative, civil and other offenses.
Object of the offense in the very general view– this is what the unlawful acts of subjects are aimed at. There are general, generic and immediate objects.
Under common object illegal activity is understood as a totality public relations, legal liability for infringements that are provided for by current legislation. Generic (or special) object denotes a group of social relations that are homogeneous in nature and are therefore protected by a single set of legal (criminal, administrative, etc.) norms. Direct object illegal activities are specific social relations that the delinquent encroaches on by committing specific crimes and misdemeanors.
It should also be highlighted item illegal activities. This those phenomena of reality (goods) towards which the interests and illegal acts (operations) of the offender are directed.
Depending on their nature, all objects of illegal activity can be conditionally divided, for example, into the following types: 1) social relations and legal ties, 2) social (state) system, 3) territory and population, 4) family and other social communities, 5 ) political regime and legal order, 6) activities (work, services, its results), 7) material and intangible benefits, 8) rights and freedoms, legitimate interests and obligations of people, 9) legal acts and other official documents, 10) subjective rights and responsibilities, 11) information, 12) surrounding natural environment, 13) morality.
Important place The content of illegal activity includes specific actions (inaction) and operations of the subject. Action represents externally expressed, individually specific and entailing certain consequences (social and legal) acts of delinquents. A set of interrelated actions united by a local goal constitutes surgery(for example, an operation such as preparation for a murder may include a wide variety of actions: inspection of the future crime scene, acquisition of weapons, collection of information about the intended victim, etc.). Inaction is a specific act, the essence of which is the absence of corresponding actions and operations provided for by law or other legal act.
In the logical structure of illegal activity, we identify the means of its commission as relatively independent elements. Facilities– these are any objects (phenomena, etc.) with the help of which a delinquent carries out an illegal action (operation) and achieves the corresponding goals and results. These means can be divided into general social, special legal and technical. Together they form criminal equipment.
The same means can be used differently by a specific offender (perpetrator, organizer, accomplice, instigator) depending on various circumstances in a specific socio-legal situation. For example, a certain person can be persuaded to commit illegal activities by persuasion, bribery, threat or other way. At the same time, implementing bribery as a method, you can use valuable items, currency and other means. The set of techniques, methods and methods of committing illegal activities forms criminal tactics.
Result illegal activity may have a social (violation public order, normal development of social relations) and legal (violation of the constitutional rights of citizens, the administration of justice), material (unauthorized use of mineral resources, torture) and intangible (slander, insult), quantitative (purchase or storage of narcotic drugs in small sizes) and qualitative (theft of objects of special historical, scientific, artistic or cultural value) expression.
Availability cause-and-effect relationships between the unlawful actions (operations) of the subject and the resulting results (consequences) of these actions – necessary element legal content of illegal activities and the condition of legal liability.
Under cause(from Latin causa) in our work we should understand this genetic connection between illegal actions (inaction) and their results, when they (actions) necessarily give rise (can give rise) to specific social, legal, material and other harmful consequences. Terms, in contrast to causes, phenomena are usually considered that cannot themselves give rise to a given phenomenon, effect, but, accompanying the causes in space and time and influencing them, provide a certain development of them necessary for the occurrence of the effect.
Time, place, setting can be considered as the main elements of the logical structure of illegal activity (for example, its commission in wartime) or in the form of “external” conditions in which the offense is committed.
The question of forms of illegal activity. Traditionally, it is believed that offense exists in two forms: in the form of actions and in the form of inaction. Moreover, the legal concept of “action” includes only those acts (body movements, words and expressions, their combinations, documents) that are illegal in nature and participate in the formation of public danger and harm. In this case we're talking about O external form of the offense.
Illegal activity has a certain internal (procedural) form, revealing the methods of organization, internal connections of the elements of its content. In this context, we can consider, for example, the main stages commission of an offense, namely: the beginning, preparation, attempt, execution and its completion, or voluntary refusal at certain stages from committing illegal activities.
Origin, change, termination, execution, etc. offenses are carried out within the framework its temporary structure.
Spatial structure reflects the corresponding types, types and subtypes of illegal activities, to the delimitation of which we proceed.
Monopolistic activity is an offense, i.e. unlawful, guilty action (inaction) of the offender, causing harm and entailing the application of legal liability measures.
Monopolistic activities are actions (inactions) of business entities that are contrary to antimonopoly legislation and are aimed at preventing, limiting or eliminating competition (Part 9 of Article 4 of the Law on Competition in Commodity Markets).
This definition is common to commodity and financial markets.
The illegality of any offense lies in the violation of the norms of objective law and the subjective rights of other persons. Actions falling under monopolistic activity are considered illegal if they violate the regulations or prohibitions established by the antimonopoly legislation. Inaction is an offense if a person voluntarily does not fulfill the obligation assigned to him by the norm of antimonopoly legislation.
Monopolistic activities violate both private and public rights and interests. First of all, this offense infringes on the subjective rights of individuals - the rights of consumers and entrepreneurs in commodity and financial markets.
These persons may suffer property damage in the form of losses (Articles 15, 16 of the Civil Code of the Russian Federation). In particular, an agreement between business entities with a total market share of more than 35% to exclude other business entities from the market as sellers of a certain product may cause the latter losses in the form of expenses already incurred and (or) lost income (profit).
When qualifying certain monopolistic actions prohibited by antimonopoly legislation, losses can sometimes be difficult to determine. Often they may be absent altogether. In this regard, the general definition of monopolistic activity does not contain any indication of losses as a consequence of this offense (see Part 9 of Article 4 of the Law on Competition in Commodity Markets). To establish and prohibit (suppress) monopolistic activities, it is not necessary to establish the existence of losses for specific entrepreneurs and consumers. At the same time, in order to apply a civil sanction to the offender in the form of compensation for damages, the establishment of the latter and a causal connection is mandatory. These elements of the offense are also important when imposing criminal liability for monopolistic activities under especially aggravating circumstances (Part 3 of Article 178 of the Criminal Code of the Russian Federation).
By violating the rights and legitimate interests of individual business entities, as well as consumers (private rights and interests), monopolistic activity harms the state and society as a whole. It consists of an attack on the rule of law in the field of competition, i.e. in preventing, restricting or eliminating competition. There are no legal definitions of the concepts of “prevention”, “restriction” and “elimination” of competition in Russian legislation. The social danger of monopolistic activity consists primarily in violating the rules of conduct that are the same for all business entities. competition("rules of the game").
The subjects of this offense (i.e., offenders) are: entrepreneurs - business entities and financial organizations, as well as a group of individuals.
It should be noted that previously the Law on Competition in Commodity Markets included among the persons carrying out monopolistic activities state executive authorities, bodies local government and their officials. In the new version of this Law dated October 9, 2002, these persons are reasonably excluded from the list of subjects of this offense, since the illegal actions (inactions) they commit to limit competition are not, by their legal nature, monopolistic activities. After all, these persons do not have the right to engage in entrepreneurial activity and are not considered as subjects of a monopoly (dominant) position in the market * (475). Such unlawful actions are among the offenses that impede the implementation of entrepreneurial activity at all.
Guilt is a necessary element of the offense constituting monopolistic activity. The literature suggests that this offense can only be committed in the form of intentional guilt * (476), since in general definition monopolistic activity contains an indication of the direction of the offender’s actions (inaction) to prevent, restrict or eliminate competition (see Part 9 of Article 4 of the Law on Competition in Commodity Markets). This position is very controversial, since the term “directed” itself does not give grounds to unequivocally state that monopolistic activity is committed only in the form of intent. For example, by imposing unfavorable contract terms on a counterparty or setting a monopolistically high price, an entrepreneur occupying a dominant position in the market pursues the specific goal of obtaining additional profit at the expense of an economically weaker counterparty. Undoubtedly, such actions can limit or eliminate competition in the market, but it is very difficult to prove the intent of the offender in the form of such purposefulness in this case. Therefore, admitting only intentional guilt would significantly limit the range of offenses prosecuted to the detriment of competitive relations in the market. Thus, guilt when committing monopolistic activities consists of two main forms: intent or negligence.
Types of monopolistic activities of business entities:
individual behavior of a business entity in the form of abuse of its dominant position in the market;
agreements (concerted actions) of business entities that limit competition.
Abuse by a business entity (group of persons) of its dominant position in the market (Article 5 of the Law on Competition in Product Markets, Article 5 of the Law on Competition in Financial Markets).
The use of the term “abuse” in relation to the offenses in question is very conditional. Despite the fact that the prohibition of abuse of a dominant position is contained in the norm of paragraph 1 of Article 10 of the Civil Code of the Russian Federation, dedicated to abuse of rights, this does not mean that the unlawful actions listed in Article 5 of the Law on Competition in Product Markets and Article 5 of the Law on Competition in financial markets are an abuse of law.
Specific prohibitions on the implementation of monopolistic activities should not be considered an abuse of law, since the occupation of a dominant position in the market by a business entity does not indicate the presence of a special right, but the existence of a certain economic situation (dominance, monopoly), suggesting the corresponding legal regime(state control)*(477).
After all, we can say that, in principle, the mere presence of a dominant (monopoly) position in the market already limits competition and in this sense is undesirable for competitive relations. However, the state cannot generally prohibit entrepreneurs from occupying such a position, since in some cases it is economically inevitable. In this regard, specific prohibitions imposed on persons occupying a dominant position do not constitute an abuse of law, since abuse means a violation of the principles provided for in general standards(for example, a prohibition to perform actions solely with the intention of causing harm to other persons, as well as actions contrary to the requirements of integrity, reasonableness and justice, unless specific prohibitions are established by special rules) * (478).
To qualify this offense, the following special conditions are required:
special position of a business entity (group of persons) in the market;
consequences of illegal behavior.
The special position of a business entity (group of persons) consists in its possession of a dominant (monopoly) position in the market.
The general consequences of monopolistic activity are specified in relation to the type of offense under consideration. In commodity markets, actions (inaction) of business entities (groups of persons) that have or may result in the prevention, restriction, elimination of competition and (or) infringement of the interests of other business entities or individuals are subject to a ban (paragraph 1, paragraph 1, art. .5 Law on Competition in Product Markets). In the financial services market, actions of financial organizations that impede access to the market for others are prohibited. financial institutions and/or providing Negative influence on General terms provision of financial services in this market (Part 1, Article 5 of the Law on Competition in Financial Markets).
The antimonopoly legislation of Russia contains exemptions (exceptions) from the rules prohibiting these actions, which consist in the fact that in certain cases the actions of a business entity can be recognized as lawful if it proves that the positive effect of its actions, including in the socio-economic sphere, will exceed the negative consequences for the relevant market (Clause 2 of Article 5 of the Law on Competition in Product Markets).
Specific offenses (abuses) provided for by law can be summarized into two groups:
(1) contractual; (2) one-sided.
Contractual abuse consists of the fact that a business entity that occupies a dominant position in the market for a certain product forces its counterparty to enter into an agreement only on conditions favorable to the former or unreasonably refuses to enter into an agreement if it is possible to do so. As a rule, such abuses occur at the stage of concluding a contract.
In particular, these include:
imposing on the counterparty the terms of the agreement that are not beneficial for him and are not related to the subject of the agreement (unreasonable demands for the transfer of financial resources, other property, property rights, work force counterparty, etc.);
creation of conditions for access to the commodity market, exchange, consumption, acquisition, production, sale of goods, which put one or more economic entities in an unequal position compared to another or other economic entities (discriminatory conditions);
establishment and maintenance of monopolistic high (low) prices, violation of the pricing procedure established by regulatory enactments;
unjustified refusal to conclude an agreement with individual buyers (customers) if there is the possibility of production or delivery of the relevant product (Clause 1, Article 5 of the Law on Competition in Product Markets, Article 5 of the Law on Competition in Financial Markets).
The purpose of these actions (inaction) is the unlawful use by a business entity (group of persons) of its dominant (monopoly) position and its receipt of profit through discrimination (violation of the principle of legal equality) of other business entities and consumers wishing to enter into an agreement with the first.
This form of unlawful use of a dominant position in the market, such as the establishment of monopolistically high and monopolistically low prices, has become widespread.
Monopoly high is the price of a product that is set by an economic entity occupying a dominant position in the product market, and at which it compensates or can compensate for unreasonable costs and (or) receives or can receive a profit significantly higher than it could be under comparable conditions or conditions competition (Part 10, Article 4 of the Law on Competition in Product Markets).
Monopoly low is:
a) the price of the purchased goods, established by an economic entity occupying a dominant position in the commodity market as a buyer, in order to obtain additional profit and (or) compensation for unreasonable costs at the expense of the seller, or
b) the price of a product, deliberately set by an economic entity occupying a dominant position in the product market as a seller, at a level that brings losses from the sale of this product, the result of which is or may be a restriction of competition by ousting competitors from the market (Part 11 of Art. 4 of the Law on Competition in Product Markets).
Thus, there are two types of monopoly low prices. In the first case, such a price is set by the buyer occupying a dominant position in the market. It is imposed, for example, on a seller who is a small business entity who finds himself in a zone of artificially created surplus of goods. In the second case, a monopolistically low price is set by the seller occupying a dominant position in the market at a level that causes him losses by selling this product. Low prices are established, as a rule, for a short time so that weaker competitors go bankrupt or leave the market.
Monopoly prices are identified by antimonopoly authorities on the basis of the Temporary MAP of the Russian Federation adopted on April 21, 1994 No. VB/2053 methodological recommendations on identifying monopoly prices * (479).
When committing these illegal actions, not only the private rights and interests of individual business entities and consumers are violated, but also the free pricing regime established by the state. After all, freedom of contract presupposes freedom to set prices, i.e. the formation of the latter under the influence of supply and demand, and not by artificial means.
Exceptions are provided by law government regulation prices (tariffs). Such regulation applies, in particular, to the products of natural monopolies (for example, electric and thermal energy, rail transportation, oil transportation, postal services, etc. - Article 4 of the Law on Natural Monopolies).
Unilateral (non-contractual) abuses are not directly related to the conclusion of contracts, but are unilateral in nature.
These include:
withdrawal of goods from circulation, the purpose or result of which is to create or maintain a shortage in the market or increase prices;
creating obstacles to market access (exit from the market) for other economic entities;
reduction or cessation of production of goods for which there is demand or orders from consumers, if there is a break-even possibility of their production (Clause 1 of Article 5 of the Law on Competition in Commodity Markets).
Agreements (concerted actions) of business entities that limit competition. Offenses related to this type of monopolistic activity, in turn, are divided into two groups:
horizontal (cartel) agreements (concerted actions);
vertical agreements (concerted actions).
The form of agreements (concerted actions) does not matter to establish their illegality. The law recognizes as unacceptable agreements (concerted actions) reached in any form (Article 6 of the Law on Competition in Product Markets, Article 6 of the Law on Competition in Financial Markets). The main ones include:
a) written agreements (contracts), concluded by drawing up one or more documents (contracts) or by exchanging written documents;
b) oral agreements and agreements (at conferences, meetings, etc.), if the fact of their conclusion is confirmed by evidence;
c) coordinated actual actions of business entities to coordinate business activities, which force other persons (business entities or consumers) to adhere to certain behavior On the market.
Horizontal (cartel) agreements (concerted actions). These are recognized as agreements (contracts), other transactions or the implementation of concerted actions by competing business entities (potential competitors), i.e. operating in the market of one product (interchangeable goods - see paragraph 1 of Article 6 of the Law on Competition in Product Markets).
In the previous version, the Law on Competition in Product Markets recognized such agreements (concerted actions) as illegal only if their participants collectively had a market share of more than 35% of a certain product. Currently, such a share is not required.
In financial markets, the law also does not provide for financial organizations to have any share in order to declare their agreements illegal. It follows from this that they are recognized as such regardless of the share of these entities in the market.
The legislation contains sample list prohibited horizontal agreements (concerted actions) that are aimed at:
establishing (maintaining) prices (tariffs), discounts, surcharges (surcharges), markups, interest rates;
increasing, decreasing or maintaining prices at auctions (including at auctions);
division of the market on a territorial basis, by volume of sales or purchases, by the range of goods sold or by the circle of sellers or buyers (customers), by types or consumers of financial services;
restricting access to the market or eliminating from it other economic entities and financial organizations as sellers of certain goods (services) or their buyers (customers);
refusal to enter into contracts with certain sellers or buyers (customers);
establishing unreasonable membership criteria that are barriers to entry into payment and other systems, without participation in which financial organizations competing with each other will not be able to provide their consumers with the necessary financial services to compete in the financial services market (see paragraph 1 of article 6 of the Law on competition in product markets, Article 6 of the Law on Competition in Financial Markets).
These offenses are considered absolutely unlawful, i.e. the law excludes the possibility of recognizing them as lawful and of the offender proving that the positive effect exceeds the negative consequences. However, in relation to other (not directly listed in the law) similar agreements (concerted actions), it is possible to prove their legality (see paragraph 2 of Article 6 of the Law on Competition in Commodity Markets).
The horizontal agreements discussed above are called cartels. A cartel is used to refer to stable alliances and agreements through which their participants (competitors), while maintaining legal independence, develop general policy on the market, divide its territory among themselves, limit access to the market for other economic entities, set uniform prices, etc.
Vertical agreements (concerted actions). They are achieved between non-competing business entities, i.e. between those receiving (potential purchasers) and those providing (potential sellers) goods (interchangeable goods). The law recognizes such agreements (concerted actions) as illegal if two conditions are present in combination:
if they have or may result in the prevention, restriction, or elimination of competition in the market;
the total share of business entities in the product market that are participants in such agreements (concerted actions) exceeds the share of more than 35% (Clause 3 of Article 6 of the Law on Competition in Product Markets).
Previously, the Law on Competition in Commodity Markets significantly limited the range of unlawful agreements (concerted actions). In particular, to recognize them as illegal, the Law required that one of the participants in such agreements (concerted actions) occupy a dominant position in the market. This is not currently required.
The legislation does not contain a list of vertical agreements (concerted actions). They can be aimed at achieving the same goals (results) as the above-mentioned horizontal (cartel) agreements.
In exceptional cases, vertical agreements (concerted actions) can be recognized as legal if business entities prove that the positive effect exceeds their negative consequences.
Inappropriate coordination. The Law on Competition in Product Markets also prohibits coordination of business activities of commercial organizations, which has or may result in restriction of competition (Clause 5 of Article 6 of the Law). Moreover, unlawful coordination can be combined with the conclusion of horizontal (cartel) and vertical agreements.
Violation of this prohibition is grounds for judicial liquidation of an organization that coordinates business activities at the request of the antimonopoly authority.
It should be borne in mind that the law provides the right commercial organizations in order to coordinate their business activities, create associations in the form of unions or associations that are non-profit organizations(Clause 1 of Article 121 of the Civil Code of the Russian Federation). The law does not contain a definition of the concept “coordination”. Coordination involves coordinating the actions of economic entities in various fields entrepreneurial activity (with and without the implementation of functions of leadership (management) of each other). The latter is recognized as unacceptable and contrary to antimonopoly legislation only if it has or may result in a restriction of competition.
Illegal activities of bodies state power and local governments to restrict competition. As already noted, Russian legislation no longer classifies as monopolistic activities the actions (inaction) of state authorities and local governments aimed at preventing, limiting and eliminating competition.
Unlike business entities, which may be subjects of a monopoly (dominant) position in the market, state authorities, local governments and their officials are deprived of this right, since they are generally prohibited from engaging in entrepreneurial activities. They are not recognized as subjects of monopoly (dominant position) and competition in the market, and therefore the law does not mention them when defining these concepts.
Nevertheless, the illegal behavior of state authorities and local governments, aimed at preventing, limiting or eliminating competition, is socially dangerous due to the fact that these entities use public authority for the purpose of unlawfully obtaining income or other privileges, violate the rights and legitimate interests of entrepreneurs, and interfere with fair competition.
The law divides offenses of executive authorities and local self-government bodies, by analogy with monopolistic activities of business entities, into the following types:
individual acts and actions;
agreements (concerted actions) limiting competition.
Individual acts and actions in antimonopoly legislation are referred to as acts and actions of federal government bodies, executive authorities of constituent entities of the Russian Federation and local governments, other organizations or bodies endowed with the functions or rights of these authorities (Article 7 of the Law on Competition in Commodity Markets, Article 12 of the Law on Competition in Financial Markets).
The specified bodies and organizations are prohibited from adopting acts and (or) taking actions that limit the independence of business entities, create discriminatory conditions for their activities, if such acts or actions have or may result in the prevention, restriction, elimination of competition and infringement of the interests of business entities. In particular, the following are prohibited:
introducing restrictions on the creation of new business entities and financial organizations in any field of activity;
unreasonable obstruction of the creation of new business entities and financial organizations in any field of activity;
establishing prohibitions on the implementation individual species activities or production of certain types of goods, except for cases established by the legislation of the Russian Federation;
unreasonable obstruction of the activities of business entities and financial organizations in any area;
restricting access of financial organizations to the financial services market or eliminating financial organizations from it;
establishment of norms limiting the choice of financial organizations for consumers of financial services;
establishing bans on the sale (purchase, exchange, acquisition) of goods from one region of the Russian Federation (republic, territory, region, district, city, district within a city) to another or otherwise restricting the rights of business entities to sell (purchase, purchase, exchange) goods;
issuing instructions to business entities on the priority delivery of goods (performance of work, provision of services) to a certain circle of buyers (customers) or on the priority conclusion of contracts without taking into account the priorities established by legislative or other regulatory acts of the Russian Federation;
unjustified provision of benefits to an individual business entity or financial organization (or several of them), putting them in a preferential position in relation to other business entities or financial organizations working on the market of the same product (service) (see paragraph 1 of Article 7 of the Law on competition in product markets, Article 12 of the Law on Competition in Financial Markets).
The current legislation contains a number of provisions establishing the inadmissibility of unlawful restrictions on the creation of legal entities and individual entrepreneurs. Yes, refusal state registration legal entity permitted only in cases established by law; refusal of state registration, as well as evasion of such registration can be appealed to the court (clause 1 of Article 51 of the Civil Code).
The inadmissibility of establishing bans on the movement of goods from one region to another is established by the Constitution of the Russian Federation. Thus, restrictions on the movement of goods and services can be introduced in accordance with federal law if this is necessary to ensure safety, protect the life and health of people, protect nature and cultural values (Part 2 of Article 74 of the Constitution of the Russian Federation).
Restrictions and prohibitions introduced by acts of state executive bodies or local government bodies are unlawful.
Obligations for the priority delivery of goods to a certain circle of buyers or for the priority conclusion of contracts can only be established by legislative and other regulations at the federal level. Such responsibilities are assigned, in particular, to suppliers who occupy a dominant position in the market for a certain product, with regard to concluding contracts for the supply of goods for government needs (clause 2 of Article 5 of the Law on the supply of products for government needs), etc.
Providing benefits not provided for by the current legislation of the Russian Federation, or providing them to an individual or several business entities, and not to an indefinite number of persons of the corresponding group entitled to benefits, is illegal.
Draft decisions of executive authorities, local self-government bodies, other organizations or bodies vested with the functions or rights of these authorities on issues of providing benefits and advantages to an individual business entity or several of them are subject to approval by the antimonopoly authority (Clause 2 of Article 7 of the Law on Competition on commodity markets).
It should be taken into account that Russian legislation prohibits vesting executive authorities, local self-government bodies and other similar bodies and organizations with powers, the implementation of which has or may result in a restriction of competition. Combining the functions of these bodies or organizations with the functions of business entities, as well as vesting business entities with the functions and rights of these bodies, including the functions and rights of state supervisory authorities, is also subject to a ban, except for cases provided for by legislative acts of the Russian Federation (see clause 3 of Art. .7 Law on Competition in Product Markets).
Unlawful agreements (concerted actions) restricting competition can be reached between:
a) federal executive authorities, state authorities of constituent entities of the Russian Federation, local self-government bodies, other organizations or bodies vested with the functions or rights of these authorities, acting as parties to such agreements (concerted actions);
b) the specified authorities (and organizations), on the one hand, and business entities, on the other.
The form of agreements (concerted actions) can be any: oral, written, actual concerted actions.
However, such agreements (concerted actions) are illegal if, as a result of their implementation, there is or may be the prevention, restriction, elimination of competition and infringement of the interests of business entities. The legislation contains an approximate list of such agreements (concerted actions) that lead or may lead to the following consequences:
division of the market according to a territorial principle, according to the volume of sales or purchases, according to the range of goods sold, or according to the circle of sellers or buyers (customers);
restricting access to the market or eliminating business entities from it;
increasing, decreasing or maintaining prices (tariffs), except in cases where the conclusion of such agreements is permitted by federal laws or regulations of the President of the Russian Federation and the Government of the Russian Federation (Article 8 of the Law on Competition in Commodity Markets, Article 6 of the Law on Competition in Financial Markets ).
The offenses in question cannot in any exceptional cases be recognized as lawful (by proving that their positive effect exceeds the negative consequences).
It should be noted that previously the Law on Competition in Commodity Markets (Article 9) classified as monopolistic activity the violation of the ban on participation in business activities by officials of public authorities and government controlled(for example, violation of prohibitions on owning enterprises; voting through their shares (shares) when making decisions general meeting business partnership or company, etc.).
Such prohibitions are provided for by the norms of various legislative acts (for example, on the fundamentals of civil service, on the status of judges, etc.).
In this regard, the Law on Competition in Commodity Markets, as amended on October 9, 2002, reasonably excluded these unlawful actions of officials from the list of violations of antimonopoly legislation.