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Section 1. Administrative law
DOI: http://dx.doi.org/10.20534/EJLPS-17-2-3-12
Pisenko Kirill Andreevich, The professor of Financial Law Department of the Russian Justice State Universityy the Candidate of Legal Science, the Associate Professor
E-mail: finpravo@rsuj.ru
The legal paradigm of antitrust (competition) regulation in Russian and world experience
Abstract: On the basis of retrospective studies major step in the reform of competition law the article examines the basic of its past and present paradigms that reflect key changes in attitudes, approaches to the content of the competition law, the nature of the sources of its regulation, government actors responsible for its development and application. Special attention is paid to the formation stages of the administrative-legal regulators of competitive relations and the modern paradigm changes associated with the development of regional integration processes, markets globalization and international competition.
Keywords: antimonopoly law, administrative law, public competition law, competition protection, antimonopoly law history, Russian experience, world experience, paradigms, European law, European Union competition law, Eurasian Union law, integration processes.
Antitrust law has deep historical roots in Rus- Later on, in connection with the strengthening of
sia and in the world [1; 2; 3, 47-52; 4, 112-153]. competition law as a system ofeconomics control, its
Over the long history of anti-monopoly regulation study has been claimed in the world. The exception
a wide legal, economic, administrative experience was the Soviet experience, where due to the special
has been accumulated in this area. But the active way of the economy, competition law, except for the
study of the phenomenon of anti-trust (compe- period of the New Economic Policy antitrust law was
tition) law began no earlier than the second half not applied and, therefore, the subject to study was
of the XIX century, which is associated with the absent. True, the international experience was stud-
search for new approaches to regulation in the new ied, and later it helped with the revival of anti-trust
economic conditions and which will be discussed law in the modern Russian period. It is necessary to
below. Among the Russian authors of this period mention the significant contribution to the theory
A. I. Kaminka, A. N. Traynin, I. I. Yanzhul, VI Sinai, and history of the world of competition law, intro-
V. N. Shreter, A. V. Venediktov, I. T. Tarasov and duced by O. A. Zhidkov [3, 47-52; 5]. others can be termed as representatives of public Currently, Russian, as well as global competition
and legal science and civil law. and regulatory science are actively developing. The
object of attention of Russian scientists is both Russian and foreign competition law. In this article, on the basis of the rich regulatory materials, works of domestic and foreign authors on the current state and past periods of global competition law, the author seeks to show its development over time, testifying to the major changes of the basic settings, competition law paradigms, depending on the specifics of the era, and reflecting the specific socio-economic and political processes affecting and predetermining shift competitive legal approaches and models.
The origins of modern antitrust regulation according to experts can be found even in Roman law [1; 2; 3, 47-52; 4]. It has come a long way from antiquity through the Middle Ages and modern times, having eventually become the part of the criminal and civil law in several European countries, particularly France, Prussia, Austria, statutory and common law in England [3, 47-52; 6, 2099-2100; 7, 230-267; 8, 450-486; 9, 10-11]. It has developed significantly, by undergoing a series of metamorphoses in the contemporary history, and in the XX century took its prominent place in the system of public administration and law, having evolved from separate antitrust orientation mechanisms to developed system of public and private law regulators [4, 23-199].
Speaking about a little-known history of Russian anti-monopoly law, it should be noted that even in the period of Ancient Russia as the first mention of monopolistic abuses of the traders are related [4, 23-44; 10, 95-96], and some of the response measures taken by the public authorities, which, however, according to the written sources, had the first casuistic character of specific issues, rather than systemic regulation [4, 25-26; 10, 95-96]. From more recent periods, in particular, XVII century, the petitions of Russian merchants, testifying about their competition with foreign merchants, complaints, and government measures on the latest, preserving or limiting the rights of foreigners, reached us [11, 70, 131-134; 12, 167; 13, 31-36].
It is known, however, that at least from the second half in XVII. Russia the first written laws, aimed at combating monopoly pricing speculation, price agreements (so-called vyazkas and agreements.) and excessive raises of bread prices and some other consumer goods and the necessary requirements by traders - monopolists [4, 24-42; 14, 168; 15]. At the same time mechanisms for public control over the observance of these rules formed and a stiff system of penalties including corporal punishment for their violation was established [4, 24-42; 15].
Then, throughout the whole XVIII century and the beginning of the XIX century acts were published, supplementing and developing antitrust prohibitions and measures against price-fixing and market monopolies, i. e. outbiddings [16; 17; 18; 19; 20; 21; 22; 23; 24; 25; 26; 27; 28; 29]. The well-known First Discipline Catherine Charter turned his attention to the issues of combating monopoly outbiddins [30]. At the first half of the XIX century said anti-monopoly regulations and standards developed in the preceding period, were revised and incorporated first in the Charter of the national food provision (included in the Code of Statutes of the Discipline by the Code of Laws of the Russian Empire laws) [31], and then also in the Code of penal and correctional punishments [32].
These measures coincided with the economic realities of the era: in order to fight with high prices on essential goods, the State created the legal measures of counteraction to local speculators-monopolists. The development of capitalist relations, the growth of the concentration of production, trade and capital demanded new markets regulation rules. The turning point for both Russian and global competition law began at the late XIX - the beginning of the XX century, when economic realities forced the State by the way of long and painful search to develop new approaches, new legal paradigm of antitrust intervention in the economy, respective development objectives the tasks ofdevelopment of industry, trade and other sectors of the economy. If before, the key to the system
of antitrust rules played civil and criminal law regulations, the economic legacy of the Industrial Revolution required a more flexible approach, the implementation ofwhich has been available to a greater extent in administrative rather than criminal law.
Changing of the economic reality, growth in the scale of industrial, commercial and financial markets and their participants, the objectively demanded concentration of production and capital necessitated the formation by the authorities of more flexible legal instruments of control and regulation of relations with participation of syndicates and trusts, competition and monopoly. State elite in the developed countries were already well aware of [7, 258-297; 8, 458-486; 33; 34, 361-371] a clear insufficiency for this purpose of the existing antitrust criminal law and civil-law arrangements established long ago in a different economic era for other tasks, namely to counteract the short-term local collusions, strikes and monopolistic speculation.These trends were reflected in the scientific and journalistic works of that period. So a detailed criticism of the inflexible American federal system of criminal liability mechanisms for monopolism imposed by the Sherman Act in its original form in 1890, based on a study of the experience of their application, contained, inter alia, in the works of I. I. Yanzhula. Simultaneously, the professor and academician actually formulated in the same work the concept of the building of a new, flexible administrative antimonopoly control system. [34, 380-445].
The need to offset the center of the implementation of anti-monopoly policy from the repressive anti-speculative activity of law enforcement bodies to economic regulation by the executive authorities, that would make administrative decisions based on the current market analysis, taking into account the integrated and sustainable interests of the State, the economy and consumers, changing global and domestic economic conditions, social and political trends and other systemic factors is all the more apparent. For example, in Australia, the
administrative control of cartel agreements was already introduced in the positive law in 1906 with the adoption of anti-monopoly The Trade Practices Act. Establishing strict antitrust prohibitions under the threat of severe penalties, the Act at the same time pointed to the opportunity to avoid these sanctions, if using a special administrative procedure established good intentions of market agreements of businessmen or, in other words, to establish the absence of harm in these agreements and the consequences of their monopolistic actions. A special procedure prescribed in the Law of 1906 made it possible for members of the commercial companies (companies, cartels, trusts) to free from accusations of deliberate violation of the Act. For this purpose, statements concluding a full charter of a company, corporation or cartel should have been filed to the special administrative body [6, P. 2099-2100].
In Russia active reforms in this direction refer to the period of the beginning of XX century. Among the specific steps — consolidation in the Ministry of Trade and Industry of the Russian Empire's powers to conduct antitrust investigations [35, 275-276], the rules on legalization (notification) of business agreements [36], the application by the Government of the customs and tariff regulation measures in order to counter the internal monopoly [36; 37, 69], the development of mergers control system [38; 39; 40]and some other measures which the authorities and society needed in the new economic reality, coupled with the necessity on the one hand, to allow and develop major business associations, production and capital concentration to increase industrial growth, and on the other — to control effectively such associations in order to consumer protection and countering selfish monopoly.
In the Western European countries the first attempts to create flexible administrative mechanisms of antitrust control instead of rigid prohibitions business associations were taken in Germany in 1923, in Sweden - in 1925 and in Norway - in 1926. Thus, the German government's Decree on the economic
abuses of economic power, without prohibiting cartels, legalized their special legal status. Government intervention was only permitted in cases where cartels by their actions threatened the whole economy or public welfare [5, 563].
Gradually, administrative and legal regime comes to a dominant position in the competition law of most countries. Even the experience of some countries where criminal law mechanisms in the fight against monopolies are actively used, for example the United States and Canada, confirms this rule, since in addition to criminal law, the earlier time, criminal law mechanisms in the fight against monopolies were subsequently as fills the first flaws were established [41, 516-522; 42, 120; 43, 60-71; 44]. Such key elements of modern competition protection systems such as anti-trust investigation of market abuses, including anti-competitive agreements and abuse of dominance (monopolization), and other operating procedures of regulatory competition authorities, including merger control (economic concentration control), control (notification) market agreements are subject to administrative and legal regulation. Control of State aid, the administrative rule-making, the status of the supervisory authority, the basics and the procedure for its interaction with other public entities of power, order of the quasi-judicial and judicial challenge acts of competition (antitrust) authorities, the public responsibility of violators, and so on, also appear among the administrative and legal subject regulation in many countries. [41, 516-522]. The public system for the protection of competition and antitrust regulation in modern Russia is not an exception.
So, if monopoly or distribution monopoly rights between citizens and the struggle with spontaneous collusion in fairs, market trading, mostly local nature, with civil and criminal law mechanisms, the aftermath of the industrial revolution were strict bans of the basic antitrust paradigm from ancient time, on the period of the merger of the banking, industrial and commercial capital, the growth of production volumes and the consolidation of economic
entities, state-monopoly capitalism has brought to life a new economic and legal antitrust paradigm key which began to play a legal and administrative controls satisfying the requirements of the law enforcer of economic specialization, adaptive management, and extensive use of discretion.
The reality of the second half of the XX century, the post-war world order, which brought block structure of global governance to life, have reflected on the anti-monopoly law. On the one hand — the regional integration associations such as the Common European Union market, then MERCOSUR, Eurasian Economic Community (EurAsEC), on the other — already globalizing outside the regional alliances the world economy and international competition within the global market, not having a national and even regional boundaries, determined the new largely the paradigm of competition law. This right with increasing clarity through the features of a complex multi-level system, following the political developments in the integration of the various unions and associations, as well as extra-regional international economic and trade organizations such as the WTO. All these processes are formalized by the creation of new legal model in which antitrust (competition) law consistently takes its rightful place as inextricably linked with the needs of regulation of market economy.
Modern political map of the world and economic reality is unthinkable without various types of intergovernmental associations and unions created to solve complex financial and economic issues, political and security issues. The degree of integration of such associations is different. One part of such associations is characterized by more policy coordination in certain areas, another transfer from the national to the supranational level interstate or a significant amount in legal regulation and enforcement powers. The European Union, inter alia, refers to the latter include. The research of modern integration processes in the post-Soviet space leads to the conclusion that similar phenomena are observed here in
the framework of the Eurasian Economic Space and the Eurasian Economic Union. Competition law is thus an integral part of the integration of economic rights, which in turn leads to a complication of the system of public subjects of competitive regulation, leads to the formation of new, multi-level, complex models and schemes of competitive regulation in which intertwine national and international, public and private law, new competitive and regulatory paradigms are born.
In the process of the deep economic, and in many respects political integration of these associations there is the process of transferring of a significant amount of regulatory and enforcement powers to the supranational level. For example, in the area of competition policy, EU institutions, not only the European Parliament but also the Council of the EU and the European Commission have considerable lawmaking powers. The EU Commission is also responsible for monitoring compliance with EU competition law, and the Court ofJustice, in turn, controls, in particular, Directives of the Commission.
It is important to note that the European Union competitive supranational regulation hasn't cancel the same regulation at the national level of Member States, although it has greatly changed [46, 3]. Levels of regulation coexist in a certain system. The criterion of differentiation of their subject matter was laid in the Treaty of Rome in 1957, according to which the competence attributed to the pan-European competition protection issues relating to the Common Market, while the national competition jurisdiction extends only to relations affecting competition within a single Member State. A similar model has been forming and in the framework of the Eurasian economic integration.
As part of a global Eurasian space, as well as the communitarian Europe, in such a way or a two-level, dualistic system of economic regulation has been forming. By analogy with the EU experience, the issues of protection of competition in the markets that go beyond a single Member State are transferred to
the competence of the Eurasian supranational bodies. This system is even more complex in federal States, where the entity level has its own antitrust authorities and their regulations.
For the study of the dualistic model, the issue of the interference of regulatory competition levels of government is very important. Thus, the study of the EU experience in the field of competition regulation led to the conclusion ofa significant dominance at the present stage of the EU regulatory approaches in the field ofcompetition policy for the maintenance ofthe same regulation in the Member States, a significant dependence on the content of the latest approaches and positions of supranational bodies of the EU.
The development of an integration or supranational competition law in the post-Soviet space, in turn, started in the framework of the CIS, as well as in the framework of the Eurasian Economic Space. The foundation on January 1, 2015 of the Eurasian Economic Union, [45] increased economic integration for a number ofpost-Soviet States. Within the framework of the Eurasian Economic Union the formation of the supranational Eurasian system of protection of competition, including physical, procedural and institutional arrangements has continued. At the level of the Eurasian Economic Union not only the competition rules, required by Member States, but also the authorities to ensure compliance with them have been provided. Wherein, the distinction of powers between the national institutions of the Member States and the Eurasian Economic Union institutions has been provided. This distinction is associated with the concept of cross-border markets.
In connection with this Article 3 of the Russian Law on the Protection of Competition has been supplemented with the following new third part: "3". The provisions of this Law hereof shall not apply to the relations regulated by the same rules of competition in cross-border markets, compliance control of which falls within the competence of the Eurasian Economic Commission in accordance with the international treaty. Market classification criteria for
cross-border established in accordance with an international agreement. "The international agreements within the framework of Eurasian integration system are obviously understood by such agreements".
Competitive relations in Eurasia have been directly regulated by Section XVIII (General principles and competition rules) of the Treaty on the Eurasian Economic Union, as well as Annex 19 to this Treaty (Protocol on the general principles and rules of competition). As it states in the article 74 Section XVIII of the Treaty on the Eurasian Economic Union, "The subject of this section is the establishment of the general principles and rules of the competition, providing detection and control of anti-competitive activity ^n the territories of Member States, and actions that have a negative impact on competition in the trans-boundary markets on the territory of two or more State Members". Hereby, the concept of cross-border market is linked to the market, whose boundaries include the territory of two or more Member States.
According to the comprehensive analysis of the provisions which were stated in the Agreement and Protocol, it follows that the distribution of powers between national and supranational institutions protecting competition passes through the cross-border markets. The latter are subject to the control of Eurasian institutions and national institutions protect competition in markets within the boundaries of the national territories.
It should be considered the norm ofArt. 74 of the Treaty, according to which the classification criteria of the market for cross-border in order to determine the competence of the Eurasian Economic Commission — the body responsible for the implementation of competition policy in the Union — established by the decision of the Supreme Eurasian Economic Council. It is also established that the Member States may impose additional requirements and restrictions in their legislation, as well as additional requirements and restrictions in respect of the prohibitions of competition under the Treaty on the Eurasian Economic Union. Further, it is established that "Member
trust) policy with respect to actions of economic entities (market participants) third countries, if such actions could have a negative impact on competition in the commodity markets of the Member States".
Article 75 establishes the General principles of competition, and Article 76 - General rules of competition. General competition rules are in fact the formulation of specific prohibitions on anticompetitive activities. So, p.1 Article 76 prohibits actions (inaction) of dominant economic entity (market participant), for example, fixing and maintaining monopolistically high or low commodity prices, and others. Part 2 Article 76 prohibits unfair competition and establishes an indicative list of prohibited acts. Further, various kinds of anti-competitive agreements between economic entities (market operators) of the Member States, the coordination of economic activities are prohibited.
Competitive and regulatory aspects of economic development are actively discussed and implemented not only within the EU and the Eurasian Economic Union, but also in a number of other regional economic integration organizations, such as MERCOSUR. In many cases, regional economic integration and competition today is associated with the formation of supranational institutions of competitive relations regulation and control. Thus, we can conclude the formation currently of a new paradigm, a new special stage in the development of competition law, the content of which is associated with the formation of complex, multilevel systems of economic and competitive management, which reflect the complexity of international economic processes, which intertwine the interests of the nation-state and globalization, national and regional economic interests, competition between regional economic integration blocs complicate international global economic regulation, particularly within the framework of the WTO.
The formation of new public entities supranational systems of competition regulation, the search
for and development of legal mechanisms for cooperation and coordination of national and supranational competition authorities, the harmonization of substantive and procedural competitive legal frameworks of the Member States of integration associations are legally a reflection of the new socioeconomic and political phase. One of the interesting questions is the distribution of specific weight of decision-making on issues of competition and markets between national governments and supranational competition structures. Various options are possible.
The first option — the parity model, where each level implements peculiar to it approaches to the substantive and procedural regulation of competition. At the same time some of the institutions competitive and legal approaches of the integration of competition law and national competition law of Member States may vary, as, for example, in the early stages of economic integration within the European Com-
mon Market. At the same time in the framework of the first scenario — the integration competition law can be produced either on the basis of the experience of one of the Member States, either through the development of new integrated approaches to the institutions and subinstitutions of substantive and procedural competition law.
The second option of the development of a new paradigm ofcompetition law can be connected with a dominance oflegal approaches ofsupranational competition law over national with the gradual mandatory harmonization of national competition law and by adjusting to the substantive and procedural standards of supranational competition and economic rights [46, 3], with the involvement of national institutions into the orbit of the active supranational regulation. The experience of recent years of European economic integration within the EU represents, in particular, such an example [47, 472-484].
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