State control over economic competition. Antimonopoly control of economic concentration. Criteria for antitrust control

Economic concentration - this is the result of transactions and other actions of economic entities provided for in Ch. VII of the Law on Competition and influencing the state of competition: the creation of large commercial organizations; making large transactions with shares (shares), property of commercial organizations, rights in relation to these organizations. These transactions and actions are subject to state (antimonopoly) control, which is carried out by giving the antimonopoly body a preliminary consent to the commission of relevant transactions and actions by economic entities (Articles 27-29 of the Law on Competition) or by receiving subsequent notification of their commission in cases provided for by Art. . 31 of the Competition Law.

The prior consent of the FAS Russia is required when business entities perform actions related to the creation or reorganization (merger, accession) of large commercial organizations, as well as major transactions with shares (interests), property or rights (Articles 27-29 of the Law on Competition).

Under creation or reorganization (merger, accession) of large commercial organizations is understood as such creation or reorganization of commercial organizations, in which the threshold values ​​of capital concentration exceed 7 billion rubles. according to the total value of the assets of these organizations or founders according to the latest balance sheets, or 10 billion rubles. - according to the total revenue of organizations or founders from the sale of goods for the last calendar year, or if one of such organizations or the founder is included in the Register of economic entities with a market share of a certain product in the amount of more than 35%.

Transactions with shares (shares), property or rights considered large if the total value of assets according to the latest balance sheets of persons acquiring shares (stakes), property or rights, and the person, shares (stakes), whose property or rights in respect of which are being acquired, exceeds 7 billion rubles. or if their total revenue from the sale of goods for the last calendar year exceeds 10 billion rubles. and at the same time, the value of assets according to the last balance sheet of the person whose shares (shares), whose property or rights in respect of which are being acquired, exceeds 250 million rubles, or if one of the indicated persons is included in the Register.

Transactions and actions specified in Art. 27-29 of the Law on Competition, if the economic entities are observed in the aggregate following conditions provided for in Art. 31 of the Competition Law:

• - transactions or other actions are carried out by persons belonging to the same group of persons;
• - the list of persons included in one group was submitted by any person (applicant) included in this group to the FAS Russia in the form approved by him no later than one month before the transactions or other actions;
• - the list of persons included in this group, at the time of transactions, other actions, has not changed compared to the list submitted to the FAS Russia.

Threshold concentrations of capital in relation to financial institutions for the purpose of exercising antimonopoly control are established by the Government of the Russian Federation (Article 29 of the Law on Competition) .

The consequences of violating the procedure for making transactions and other actions subject to antimonopoly control are provided for in Art. 34 of the Competition Law. Commercial organizations established in violation of the established procedure are liquidated or reorganized in court at the suit of the antimonopoly body, if their creation has led or may lead to restriction of competition. Transactions made in violation of the established procedure are declared invalid in court at the suit of the antimonopoly authority if they have led or may lead to restriction of competition.

Economic concentration abroad is also manifested in the formation of monopolistic structures (mergers, acquisitions); making transactions for the acquisition of large assets of another market participant, large blocks of shares (stakes) in the authorized capital of another market participant, rights that allow determining the conditions for conducting entrepreneurial activity another market participant. At the same time, in some countries the concentration of capital, which restricts competition, is prohibited, while in others it is regulated and controlled in a certain way.

In the USA, Japan, Germany, mergers of firms and major transactions for the acquisition of shares, other property and rights that significantly restrict competition are prohibited. The law provides for prior notification of the antimonopoly body of the planned concentration. If there are no objections to the concentration of capital within the period prescribed by law, it may take place. For example, firms with assets or sales of $100 million or more are required to notify the US antitrust authorities of a proposed merger, acquisition of shares or other property worth $15 million or more. The German cartel law provides for an indicative list of prohibited mergers (for example, the acquisition of a significant part of the property of another enterprise; the creation of a concern; the acquisition of shares in another enterprise that gives the acquirer control over it; the acquisition of the right to create a supervisory board, board or other body to conduct business of another enterprise), as well as the size of turnover, market shares and acquisitions of controlled enterprises.

In the UK, France, the EU, the merger of companies is not prohibited, but subsequent control over such a concentration is provided. For example, in the UK, a merger is controlled if the market share of the merging companies is 25% or more, or the value of their assets exceeds £30 million. In France, companies are subject to control, which, as a result of the merger, have an annual turnover on the world market exceeding 150 million euros, or 15 million euros if the activities of such enterprises do not go beyond the French market.

EU Council Regulation No. 4064/89 of December 21, 1989 provides for concentration thresholds: more than 2/3 of the total turnover of each of the enterprises participating in a merger or acquisition must be in one of the EU member states; the total global turnover of all participating enterprises must exceed 5 trillion euros; the total turnover within the EU of each of the at least two participating enterprises must exceed 250 million euros; the market share of all participating enterprises must be above 25% within the EU or a significant part of it.

• See Decrees of the Government of the Russian Federation of May 30, 2007 No. 334 “On Establishing the Amounts of Assets of Financial Institutions (Excluding Credit Institutions) for the Purpose of Antimonopoly Control” and No. 335 “On Establishing the Amounts of Assets of Credit Institutions for the Purposes of Exercising Antimonopoly Control”.
• Concern (English, concern) is one of the forms of capitalist monopolies, an association of many industrial, commercial and financial enterprises that formally retain their independence, but are actually subordinate to financial control and leadership of the group of largest capitalists that dominates the association. See: Dictionary of foreign words. 7th ed. M., 1980. S. 258.

Description Dominant provision under the legislation of the Russian Federation: 1. allowed 2. prohibited subject to: 1. Real estate transactions 2. Public order placement agreements 3. Mergers of companies 4. Supply contracts Subjects of abuse of a dominant position can be: 1. Only commercial organizations 2. Only business entities 3. Only executive authorities and business entities 4 Only federal executive authorities and business entities The following is not an absolutely prohibited type of abuse of dominant position: 1. withdrawal of goods from circulation, if the result of such withdrawal was an increase in the price of the goods; 2. establishment, maintenance of a monopoly high or monopolistically low price of goods; 3. creation of discriminatory conditions; 4. violation of the pricing procedure established by regulatory legal acts. According to Article 13 of the Law on Competition, the following actions can be recognized as permissible: 1. Restricting competition 2. Eliminating competition 3. Imposing restrictions on their participants or third parties that do not correspond to the achievement of the goals of these actions 4. Preventing competition Prohibited Art. 11 agreements that lead to: 1. setting or maintaining prices (tariffs), discounts, surcharges (surcharges), markups 2. restricting competition 3. creating obstacles to access to the commodity market or exit from the commodity market to other economic entities; 4. division of the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers) A person in respect of whom the fact of an administrative offense under Art. 14.32 of the Code of Administrative Offenses of the Russian Federation: 1. Can be exempted from administrative liability at the discretion and in cases established by the antimonopoly authority; 2. Cannot be released from administrative responsibility, since this offense cannot be recognized as insignificant; 3. Can be exempted from administrative responsibility in the cases established by Art. 14.32 Administrative Code of the Russian Federation; 4. Can be exempted from administrative liability at the discretion of the antimonopoly body, if the illegal agreement does not eliminate, but only restricts competition. prohibited: 1. Only horizontal agreements 2. Only vertical agreements 3. No correct answer Administrative responsibility under Art.14.32. occurs for: 1. legal entities 2. Officials (heads of legal entities) 3. legal entities and officials (heads of legal entities) Contestation (appeal) in court of decisions and instructions of the antimonopoly body: 1. Suspends the term for their mandatory execution 2. Not suspends the period of their mandatory execution 3. Suspends the period of their mandatory execution at the discretion of the court The composition of the Commissions considering cases of violation of antimonopoly legislation cannot include: 1. Employees of the antimonopoly body 2. Employees of the Bank of Russia 3. Employees of the federal body for control over the securities market 4. Employees of the federal body of budgetary oversight Prevention of antimonopoly violations 1. Control of economic concentration 2. Control of the provision of state and municipal preferences 3. Consideration of a case on violation of antimonopoly legislation but other measures of power influence are applied 4. Criminal liability The obligation to provide information to the antimonopoly authority does not apply to: 1. Officials of government bodies 2. Individual entrepreneurs 3. Non-profit organizations 4. No correct answer Criminal case under Art. 178 of the Criminal Code of the Russian Federation “Prevention, restriction or elimination of competition” is initiated and investigated by: 1. The central office of the antimonopoly body 2. The central office and territorial departments of the antimonopoly body 3. The commissions of the antimonopoly body 4. The Investigative Committee of the Ministry of Internal Affairs The antimonopoly body is not entitled to issue binding orders: 1 . Federal body in the field of securities markets 2. Credit institutions 3. Heads of administrations of subjects Russian Federation 4. To the Pension Fund of the Russian Federation Acts of unfair competition do not include: 1. incorrect comparison by an economic entity of goods produced or sold by it with goods produced or sold by other economic entities; 2. Establishment and maintenance of a monopolistically high price of goods; 3. Illegal use of a trademark; 4. Industrial espionage For failure to submit information to the antimonopoly authority, the following occurs: 1. Administrative liability; 2. Criminal liability; 3. Direct liability is not provided, but the antimonopoly authority may issue a binding order. An economic entity cannot occupy a dominant position: 1. whose market share is less than 35% 2. whose market share is less than 8% 3. whose market share is less than the share of any other competitor 4. less than 3% 5. No correct answer Government of the Russian Federation determines the conditions for recognizing a dominant position: 1. financial organization 2. non-profit organization 3. ministries and departments 4. law firms Subjects of the Russian Federation 4. The Law on Protection of Competition and the Civil Code of the Russian Federation Abuse of a dominant position harms: 1. competitors 2. consumers of goods 3. competitors and consumers of goods 2. subject of natural monopoly 3. owner of exclusive rights to the results of intellectual activity and equivalent means of individualization of a legal entity, means of individualization of products, works or services. The forms of abuse of a dominant position include: 1. Violation of the pricing procedure 2. Violation of the rules for registering a trademark , determined as a percentage of the violator's revenue 3. Penalty, determined as a percentage of the violator's income 4. Penalty, determined as a percentage of the violator's profit Administrative responsibility has not been established for the following types of monopolistic activities: 1. Agreements restricting competition 2. Concerted actions restricting competition 3. Coordination of economic activities 4. Abuse of dominant position 5. No correct answer The system of admissibility of anti-competitive agreements: 1. Includes special rules for vertical agreements; 2. Does not include special rules for vertical agreements; 3. Includes special rules for horizontal agreements; 4. Excludes prohibitions vertical agreements. Contestation (appeal) in court of decisions and orders of the antimonopoly body: 1. Suspends the period of their mandatory execution 2. Does not suspend the period of their mandatory execution 3. Suspends the period of their mandatory execution at the discretion of the court about the violation to the antimonopoly body 2. Order of the head of the antimonopoly body 3. Decree of the President of the Russian Federation 4. Decree of the Government of the Russian Federation Commissions considering cases of violation of antimonopoly legislation cannot include: 1. Employees of the antimonopoly body 2. Employees of the Bank of Russia 3. Employees of the federal body for control over the securities market 4. Employees of the federal body of budgetary supervision Suppression of violations of the antimonopoly law is ensured within the framework of the procedures: 1. Control of economic concentration 2. Control of the provision of state and municipal preferences 3. Consideration of a case on violation of the antimonopoly law 4. Application of measures of administrative responsibility liability 3. Responsibility has not been established, but other measures of power influence are applied 4. Criminal liability There are no include: 1. Administrative fine 2. Order 3. Disqualification administrative offense under article 14.31. The Code of Administrative Offenses of the Russian Federation is: 1. Adoption of a decision by the Commission of the antimonopoly body on violation of antimonopoly legislation 2. Receipt of information indicating signs of a violation of Art. 14.31. Code of Administrative Offenses of the Russian Federation 3. Order of the head of the FAS Russia State and municipal preferences are granted: 1. With the prior consent of the antimonopoly authority 2. By notification 3. Not subject to prior or notification approval, but the FAS has the right to detect violations on its own initiative as part of scheduled inspections of authorities Violations of the antimonopoly law do not include: 1. Violation by a local self-government body of the procedure for concluding a contract for the lease of municipal property; 2. Abuse of dominant position; 3. Conclusion of an agreement to increase, decrease or maintain prices at the auction; 4. Establishment by the authority for purchasers of goods of restrictions on the choice of economic entities that provide such goods; 5. There is no correct answer. The antimonopoly body is not entitled to issue binding orders to: 1. The Central Bank of the Russian Federation 2. Credit institutions 3. Heads of administrations of the constituent entities of the Russian Federation.

§ 1. The concept, goals and objectives of the institution of control of economic concentration. Transactions and actions subject to approval by the antimonopoly authority in order to control economic concentration, the procedure for such approval

The main form of prevention of monopolistic activity, used in world practice and domestic antimonopoly legislation, is the institution of control over the economic concentration of economic entities. The concept of economic concentration is defined in Article 4 of the Law on Competition - these are transactions, other actions, the implementation of which affects the state of competition. The procedures for controlling economic concentration are the approval by the antimonopoly body of a number of transactions and actions provided for in Ch. 7 of the Law on Protection of Competition in accordance with the criteria defined there, indicating which types of transactions and actions and in which cases are subject to approval, and in which not. In world practice, the control of economic concentration is also often called the control of mergers of companies.

In the most general terms, the task of controlling economic concentration is to prevent the emergence of a situation in the market in which the market power (dominant position) of one or more economic entities (groups of persons) in the market arises or increases or the market enters a state of high concentration, for example, within the framework of an oligopoly , which in turn will lead to an easy opportunity for market participants in the future to abuse their market power (dominant position) or enter into anti-competitive (horizontal) agreements and / or carry out concerted actions. In such cases, the state must prevent such transactions that lead to an excessive increase in market concentration, fraught with the indicated consequences.

At the same time, there are cases when, due to the positive effect for consumers and the economy as a whole, economic concentration can be justified. The harm from restricting competition may be less than the benefit from a merger. Due to the fact that the result of mergers (economic concentration) cannot be unambiguously determined in advance as negative, mergers are not prohibited, but placed under the control of the state represented by authorized bodies.

Issues of state control over economic concentration are defined by law and regulated in Ch. 7 of the Competition Law. In addition, individual federal laws establish special rules for controlling economic concentration for certain sectors of the economy, supplementing the general mechanisms of the Law on Competition (see below for more on this).

Ch. 7 The Law on Competition, in accordance with the criteria defined there, indicates which types of transactions and actions and in which cases are subject to approval, and which are not. In essence, Chapter 7 legally defines the types of transactions and actions that may result in a merger of companies and an increase in market concentration. It should be noted that in theoretical, debatable terms, there may be possible discrepancies between the legislative list of transactions subject to control and transactions that actually lead to economic mergers. The law, for example, may require the approval of not all transactions that lead to mergers, or, on the contrary, establish an excessive barrier - require the approval of transactions that do not significantly affect the state of the competitive environment. Questions of compliance of the law with ideal economic calculations are the subject of scientific and public discussion. One of the results of this discussion was the preparation of amendments to the Law on Competition, according to which now they do not require the approval of transactions that were previously agreed upon by notification (Article 30 of the Law on Competition), except for cases of merger transactions within a group of persons (Article 31 Law on Competition), as well as repurchase agreements with the participation of the Bank of Russia (Article 26.1).

Regardless of the conformity of the legislative list of transactions with ideal ideas and economic calculations, economic entities have an obligation to coordinate their transactions and actions in accordance with a legally defined list of transactions and actions. In accordance with the Law on Competition, transactions and other actions are subject to state control:

With regard to the assets of Russian financial organizations and fixed production assets and (or) intangible assets located on the territory of the Russian Federation,

In relation to foreign persons and (or) organizations supplying goods to the territory of the Russian Federation in the amount of more than one billion rubles during the year preceding the date of the transaction, other actions subject to state control.

The above general rules on the subject of economic concentration control specified in Art. 26.1 are specified further in Art. 27-31 of the Competition Law. Considering the requirements of these articles as a whole, it can be concluded that the Law establishes several groups of criteria for determining cases of approval of transactions and actions subject to approval by the FAS Russia. But before considering these groups, it must be emphasized that the coordination with the antimonopoly authority specified in Ch. 7 of the Law on Protection of Competition, transactions and actions are carried out in two forms of control: preliminary, i.e. preceding the transaction or action, and subsequent, i.e. implemented after the transaction or action has already been completed.

Preliminary control is implemented by considering the request of the interested person to complete a transaction or action, and subsequent control in the form of considering a notification of the interested person about the transaction or action. The basic requirements for the filing and content of petitions and notifications, for the list and content of the documents attached to them are established in the same chapter. 7, as well as in by-laws of the antimonopoly authority, detailing the issues of the procedure for controlling economic concentration in accordance with the requirements of the Law on Protection of Competition.

Subsequent the procedure is implemented by submitting notifications to the antimonopoly body upon the completion of the relevant transaction.

Preliminary control can be considered the main mechanism for controlling economic concentration at the moment. Transactions and actions that meet the criteria established by law are subject to preliminary control. Subsequent control acts as a lesser administrative barrier; it is applied either in relation to transactions that are less dangerous for competition or in the presence of public interests competing with the public interest in protecting competition. More about immunities, exceptions, cases of application of follow-up control will be discussed below. Here we will first consider the criteria for coordinating transactions and actions carried out in the order of preliminary control.

The Law on Competition establishes several groups of criteria for determining those transactions. Firstly, only transactions or actions that can lead to economic concentration, an increase in the market share of any of the participants in the transaction or action are subject to control. to those affecting concentration actions The law refers:

Creation of a commercial organization;

Merger of commercial organizations;

Accession of a commercial organization.

An example of a competitive action might be, for example, the merger of competing companies or the creation of a new company by two founders who worked in the same market before the action, with the transfer of authority to the newly created organization to maintain economic activity in a market where the founders previously competed.

In more detail, the regulation of actions requiring coordination is given by the Law in Art. 27 of the Competition Law.

As well as actions, only those transactions are subject to control, which, in the opinion of the legislator, lead to an economic merger of companies. As such, the legislator considers the following transactions:

Acquisition by a person (group of persons) of shares in the authorized capital of a limited liability company registered in the Russian Federation (this requirement does not apply to the founders of a limited liability company upon its creation);

Obtaining ownership, use or possession by an economic entity (group of persons) of fixed production assets located in the territory of the Russian Federation (with certain exceptions), if the book value of the property constituting the subject of the transaction or related transactions exceeds twenty percent of the book value of fixed production assets and intangible assets of an economic entity carrying out the alienation or transfer of property;

Acquisition by a person (group of persons) as a result of one or several transactions of the rights that make it possible to determine the conditions for an economic entity registered in the Russian Federation to carry out entrepreneurial activities or to perform the functions of its executive body.

Acquisition by a person (group of persons) of more than fifty percent of the voting shares (stakes) of a legal entity established outside the territory of the Russian Federation, or other rights that allow determining the conditions for such a legal entity to carry out entrepreneurial activities or to perform the functions of its executive body.

Thus, the subject of economic concentration control includes transactions related to obtaining the right to determine the market decisions of an economic entity through the acquisition of voting shares, shares, fixed production assets or rights that allow determining the conditions for such a legal entity to carry out entrepreneurial activities or to perform the functions of its executive body.

With regard to transactions with shares, one should immediately pay attention to the fact that agreements with the antimonopoly authority require transactions not with shares in general, namely with voting shares, i.e. with shares giving the right to participate in the management of a joint-stock company. Transactions to acquire preferred shares do not require approval.

It should also be noted that for transactions for the purchase of voting shares or shares, the Law establishes an additional criterion, the essence of which is that the agreement requires the acquisition of not any number of shares or shares, but only such as a result of which the acquiring person has a certain amount of shares or shares. , which allows you to determine, influence or influence with a greater degree on the decisions of the company whose shares or shares are acquired. The law establishes that only such transactions (both with the participation of financial organizations and with the participation of other business entities that are not financial organizations) require coordination with the antimonopoly authority, as a result of which the buyer of shares receives, in total with the shares already held before, more than 25%, 50% or 75% of the voting shares of an economic entity or the buyer of shares receives in total more than 1/3, 50% or 2/3 of the shares of the company.

For example, if a person previously had 10% of the voting shares of an economic entity and intends to buy another 10%, then such a transaction does not require approval, since as a result of the transaction he will have only 20% and the first threshold of 25% has not yet been reached. If he wants to buy another, for example, 7% of the shares, then such a deal will require approval, because as a result of it there will already be 27% of the shares, and this is already more than 25%. Subsequent transactions will not require approval until the next threshold of 50% is reached, and after receiving more than 50%, they will not require approval until the next threshold of 75% is reached. So, only transactions require approval, as a result of which a person (a group of persons) receives, together with the shares he previously had, more than 25% or more than 50%, or more than 75% of the voting shares of a legal entity.

Similarly, the issue is resolved in relation to the purchase of shares.

This rule was introduced in order not to burden legal entities that carry out transactions for the purchase of shares with unnecessary administrative barriers, and not to overwhelm the antimonopoly body with unnecessary work. Approval is required only for those transactions with the purchase of shares that lead to significant changes in participation in the management of a legal entity through the ownership of its shares, i.e., transactions related to obtaining blocking and controlling stakes.

Additional criteria have also been established with regard to transactions on obtaining ownership, use or possession by an economic entity (group of persons) of fixed production assets and (or) intangible assets of another economic entity. Such transactions are subject to approval only if a certain amount of assets is acquired. It is important to note that this criterion is related to the value of the book value of the property, which is precisely the subject matter of the transaction or related transactions. Unlike transactions with shares and shares, according to these transactions with property, it is important not how much became from the acquirer of this property of a person in aggregate with the already existing property of the same person, and what amount of the acquired property of a person is immediate subject this transaction or related transactions.

For all persons, except for financial institutions, this value exceeds 20% book value of fixed production assets and intangible assets an economic entity carrying out the alienation or transfer of property. For financial institutions, this value is determined by the Government of the Russian Federation, for credit institutions - by the Government of the Russian Federation in agreement with the Bank of Russia.

This value is determined in relation to financial institutions that are not credit institutions by Decree of the Government of Russia dated May 30, 2007 No. 334 “On establishing the values ​​of assets of financial institutions (excluding credit institutions) and the aggregate share of financial institutions (excluding credit institutions) in the commodity market for the purpose of exercising antimonopoly control”. With regard to credit institutions, Decree of the Government of Russia dated May 30, 2007 No. 335 “On establishing the values ​​of assets of credit institutions and the aggregate share of credit institutions in the commodity market for the purpose of exercising antimonopoly control”.

So, the types of transactions and actions were considered above, based on their subject matter, which are subject to agreement with the antimonopoly authority.

The antimonopoly legislation of Russia, which is consistent with global practice, also uses the second criterion, which allows cutting off transactions and actions that do not require approval on another basis - the financial indicators of the participants in the transaction (action), indicating the degree of economic influence, economic position, power of the participant in the transaction. These criteria include the following:

The total value of the assets of a person (group of persons) acquiring shares, shares, etc., determined in the law. and persons (groups of persons) whose shares, shares, etc. are acquired, i.e. a person who is an object of economic concentration;

The total revenue of such persons from the sale of goods defined in the law.

As indicated in Part 3 of Art. 28 of the Law on Competition, when determining the total value of the assets of a person acquiring shares (shares), rights and (or) property, and his group of persons and a person who is the object of economic concentration, and his group of persons in accordance with Part 1 of Article 28 the assets of a person selling (alienating) shares (stakes) or rights in relation to a person that is an object of economic concentration (selling person) and his group of persons are not taken into account, if as a result of the transaction the selling person and his group of persons lose the rights allowing determine the conditions for the implementation of entrepreneurial activities by a person who is the object of economic concentration.

Thus, for transactions for the sale of shares, shares, rights or fixed assets, if the selling person and his group of persons do not lose their rights to determine the conditions for conducting entrepreneurial activities by a person who is the object of economic concentration, then in this case it is also necessary to include in the total the value of the assets is also the assets of the selling person and his group of persons.

Currently, there is also another criterion - the fact that at least one participant in the transaction is in the register of economic entities that have a market share of a certain product in the amount of more than 35% or occupy a dominant position in the market of a certain product. There is no such criterion in the experience of antimonopoly regulation of the control of economic concentration in developed countries - this is a product of exclusively domestic rule-making. According to the expert community, it acts as an excessive administrative barrier, since it does not reflect the actual monopoly trends. In this regard, proposals are being discussed to exclude the registry as a basis for coordinating transactions and actions within the control of economic concentration.

At the moment, the presence of one of three indicators - the total value of the assets of economic entities of participants in the transaction or action (assets of their groups of persons) of a certain amount; the total proceeds of such persons from the sale of goods or the fact that at least one participant in the transaction is in the register, is the basis for agreeing the transaction.

It should be noted that if in relation to economic entities that are not financial institutions, financial indicators that are criteria (threshold values) are defined directly in Ch. 7 of the Law on Competition, in relation to financial institutions, including credit institutions, such indicators are not defined in the said Law. The law in these cases contains a reference to the resolutions of the Government of Russia. At present, such acts have been adopted. Thus, in relation to financial institutions that are not credit institutions, this is Decree of the Government of the Russian Federation dated May 30, 2007 No. 334 (as amended on December 6, 2012) “On establishing the values ​​of assets of financial institutions (excluding credit institutions) and the total share of financial institutions ( with the exception of credit institutions) on the commodity market for the purpose of exercising antimonopoly control”.

With regard to credit institutions, this is Decree of the Government of the Russian Federation dated May 30, 2007 No. 335 (as amended on December 6, 2012) “On establishing the values ​​of assets of credit institutions and the aggregate share of credit institutions in the commodity market for the purpose of exercising antimonopoly control”.

All cases were listed above, when transactions and actions that require prior approval of the antimonopoly authority. More details on the types of transactions and the approval criteria are specified in Art. Art. 26.1 - 31 of the Competition Law.

It was noted above that the preliminary control of mergers (transactions and actions) is the main form of control of economic concentration. However, due to the insignificant effect of certain transactions on competition or the presence of other public interests of the state that compete with the public interest in the field of antimonopoly policy, the Law on Competition establishes a number of exceptions and special rules for controlling economic concentration.

General immunity is established for transactions or actions when their implementation is provided for by acts of the President of the Russian Federation or acts of the Government of the Russian Federation. This rule is established in Art. Art. 27 – 29 of the Competition Law. Thus, if transactions or actions meet the criteria according to which they are subject to preliminary control, however, their implementation is provided for by acts of the President of the Russian Federation or acts of the Government of the Russian Federation, such transactions and actions are not subject to approval.

Article 26.1 of the Law on Competition also establishes immunity for repo transactions of the Bank of Russia, indicating that the provisions of Chapter 7 do not apply to central bank of the Russian Federation in accordance with Federal Law No. 86-FZ of July 10, 2002 "On the Central Bank of the Russian Federation (Bank of Russia)" repurchase agreements. At the same time, Article 26.1 further states that the Central Bank of the Russian Federation is obliged to submit to the antimonopoly authority a notification of its operations to acquire shares of commercial organizations, shares and assets of financial organizations under repurchase agreements within forty-five days after the date of such operations in the manner determined by the federal antimonopoly body in agreement with the Central Bank of the Russian Federation.

Thus, for the operations of the Bank of Russia under repurchase agreements, the following is established, i.e. less burdensome Megaregulator (Bank of Russia) type of control. Establishment of general immunity from the rules of Ch. 7 and, at the same time, the establishment of the procedure for coordinating the operations of the Bank of Russia in the subsequent procedure is probably connected with the general system of immunities provided for by the antimonopoly legislation in relation to the Bank of Russia. The legislator, as it were, equalizes the importance of two public interests, two areas of public administration - financial and credit and antimonopoly. The obligation of the Bank of Russia to preliminarily coordinate operations may jeopardize the quality and effectiveness of the financial policy of the Megaregulator (Bank of Russia). In this regard, the legislator introduced immunity for such operations from prior approval. At the same time, for the benefit and completeness of antimonopoly control and antimonopoly policy, the legislator provided for subsequent control and accounting by the antimonopoly authority of Bank of Russia operations under repurchase agreements by receiving notifications from the latter. It should also be recalled that, under the Law on Competition, the Bank of Russia not only acts as a controlled entity, but also has powerful regulatory and control powers.

"Soft" follow-up control in the form of notifications is established by the Law on Competition also in relation to transactions and actions performed within the same group of persons, if the relationships within the group of persons meet the criteria of paragraphs. 2-9 Part 1 Article 9 of the Law on Competition. Such transactions and actions, precisely because they are carried out within the same group of persons, the total share of which cannot therefore be changed by such a transaction or action, are less of a potential threat to competition. Therefore, in Art. 31 of the Law on Protection of Competition, a special rule is established that transactions and actions subject, as a general rule, to mandatory prior approval with the FAS Russia in the form of filing a petition, may, at the request of the interested participants in such transactions and actions, be agreed upon in a subsequent, notification procedure, if such a transaction and actions is implemented within the same group of persons and the parties to the transaction (interested persons) comply with the procedural conditions specified in Art. 31. Such special conditions include, in particular, providing the antimonopoly body with information about a group of persons in the form established by the antimonopoly body. Such transactions and actions are agreed upon in a notification manner, as less dangerous for competition.

If the relationship of persons within a group of persons meets the criteria specified in paragraph 1 of part 1 of Art. 9 of the Law on Competition, then it is not required at all to coordinate a transaction or action within such a group of persons. This rule is established in the second part of Art. Art. 27-29 of the Competition Law. According to paragraph 1 of part 1 of Art. 9 of the Law on Competition, in particular, a business company (partnership, economic partnership) and an individual or a legal entity are recognized as a group of persons, if such an individual or such legal entity has, by virtue of its participation in this economic company (partnership, economic partnership), or in accordance with the powers received, including on the basis of a written agreement, from other persons, more than fifty percent of the total number of votes attributable to voting shares (stakes) in the authorized (share) capital of this economic company (partnership, economic partnership).

Thus, depending on the methods of interconnection within a group of persons, transactions and actions within a group of persons may either be agreed upon in a simplified notification procedure (clauses 2-9, part 1, article 9 of the Competition Law) or not require coordination at all (clause 1 Part 1, Article 9 of the Law on Competition).

In conclusion, it should be noted that, by virtue of the provisions of Article 33 of the Law on Competition, transactions or actions within a group of persons requiring a notification procedure for approval can, at the request of the applicants, be agreed upon in advance, i.e. by filing, instead of notification, a petition for giving consent to their implementation to the antimonopoly body, which is obliged to consider this petition in the prescribed manner. Probably, this rule is provided for cases where the applicant predicts, after the filing of the notification, that the antimonopoly authority will apply enforcement action to the participants in the transaction in the form of issuing an order in order to ensure competition, since the antimonopoly authority may consider the transaction for which the notification has been submitted to be dangerous for competition. In this case, the implementation of the order after the transaction may entail costs, which could not have happened if this reaction of the antimonopoly body had become known in advance. In this regard, the Law reserves the right for applicants to decide whether to file a notification or exercise the right to file a petition in order to provisionally comply with the mandatory instructions of the antimonopoly authority and thereby avoid the need to comply with mandatory requirements in the future, which may entail significant costs.

It should also be noted that reasonable opinions are expressed among the expert community on the advisability of canceling the approval of transactions and actions performed within a group of persons, as having no significant impact on competition.

State control of economic concentration

AB. Tours

Adviser of the Department of Economics and Finance of the Government of the Russian Federation, State Adviser of the Russian Federation 2nd class

As an economic phenomenon, concentration has positive side as for the consumer who gets the opportunity to purchase goods at lower prices, best quality and with a set of additional services, and for the state - from GDP growth and increasing national competitiveness to simplifying fiscal control and increasing tax revenues.

At the same time, the desire for the center - con centrum (lat.) - when certain boundaries are exceeded, can have the opposite result, leading to curtailment of competition, losses for the state as a whole and its individual citizens who are not employed in this enterprise, in particular.

Thus, state control of economic concentration is carried out where there is a threat to the functioning of normal market relations.

The processes of globalization of the world economy have led to a significant increase in mergers and acquisitions that have occurred in the last decade, which stimulated the adoption of national systems for regulating economic concentration. Currently, more than 60 countries have state regulation of economic concentration, and 2/3 of them, primarily Asian countries, South America and of Eastern Europe, accepted co-

relevant regulations in the last fifteen years.

Since 2000, the number of mergers requiring the approval (notification) of the competition authorities of several countries has increased; according to the European Commission, more than 300 of the largest transactions in the world could be attributed to this category of multinational mergers, and about 200 transactions were notified to the relevant state authorities two or more countries.1

In different legal systems There are four main groups of criteria for evaluating threshold values ​​for determining the need to notify the transaction being made by the competent state authorities:

one . Measures based on market share, defined as the combined share of the companies involved in the merger in a particular market for a product or service within a given country's geographic area. The threshold value of the market share is up to 40% (Norway, New Zealand), but, as a rule, does not exceed 20-30% (Brazil, Bulgaria - 20%; Spain, India, Slovakia -25%, Portugal - 30%)

2. Criteria based on sales/turnover. Both the world turnover and the turnover in the country itself are considered. Threshold values ​​in the national market are an order of magnitude lower, since

directly relate to their own economically more thorough state con-

mystical interests, which suggests a troll.

Table 1

Country * Belgium Netherlands France Austria Italy Germany

Aggregate turnover of the merger participants (million euros), 40,115,150,300 390,500

including on the national market 30 30 30 15 40 25

Table note:

* Threshold values ​​in the EU and the USA, see "Mergers and Acquisitions", No. 1, 2004, A.V. Turov. Cost and time costs of controlling economic concentration in transnational mergers.

3. The size of assets can be expressed in absolute and relative terms. Acquired assets and total assets of the participant can be calculated

deal nickname. The use of relative values, for example, indicates the presence of serious inflationary processes in these countries.

table 2

Country Japan Canada United Kingdom Colombia Venezuela Russia

Cost of acquired assets (mln USD) 17 24

Total assets: (USD million): 85 49 102

minimal wages(thousand) 50 30000*

accounting tax units (thousand) 120

Table note:

4. The last group of criteria is related to the potential consequences for the local market and is used along with other criteria in Brazil, Poland, Slovakia and some other countries.

The above threshold indicators are not mutually exclusive and are used by foreign competition authorities to determine the need for notification, both jointly and alternatively.

In 2004, Russia became one of the largest markets in Europe in terms of M&A transactions with a total volume of $30 billion, which is 70% more than in 2003. The sum of all announced transactions for the acquisition of Russian assets amounted to about $26.5 billion. , and a quarter of all transactions (6.5 billion dollars) were carried out with the participation of foreign investors; the volume of transactions for the acquisition of foreign assets by Russian companies amounted to $3.5 billion. 2

In accordance with the current Russian antimonopoly legislation, threshold values ​​for the level of state control over economic concentration are set based on the value of total assets. Until self-

Since recently, the threshold values ​​have been extremely low, which has not prevented concentration processes in metallurgy, the fuel industry, chemistry and petrochemistry. According to Professor I.V. Knyazeva, in 2002-2003. the share of highly concentrated sub-sectors in these industries ranged from 45 to 75%. Moreover, in ferrous and non-ferrous metallurgy, industry building materials, other industries showed a trend towards increasing concentration. For example, out of 23 sub-sectors of non-ferrous metallurgy, concentration increased in 153.

The question arises: should state control correspond to the level economic development countries and when should conditions be created to accelerate concentration?

When making calculations, it would be appropriate to proceed from the association of Russia with the club of world powers, so the level of state control should correspond to the indicators of this particular group of countries, but within what limits?

The given data for 2001 on the number of population, employment and size of GDP make it possible to trace the tendency of the level of control of economic concentration to correspond to the size of GDP per capita of the employed population.

Table 3

Country USA Japan Germany France UK Italy Canada Russia

Population (million people) 275.3 126.9 82.2 58.9 59.8 57.2 30.8 145

Employed population (million people) 142.1 67.7 40.1 26.3 29.4 23.7 16.1 71.3

In % of the total population 51.6 53.3 48.8 44.7 49.2 41.4 52.3 49.2

GDP (billion dollars) 10143.2 3364.5 2185.3 1525.5 1526.1 1510.6 893.2 1200

Country USA Japan Germany France UK Italy Canada Russia

GDP (thousand dollars per capita) 36.S 26.5 26.6 25.9 25.5 26.4 29 S.3

GDP (thousand dollars per employee) 71.4 49.7 54.5 5S.0 51.9 63.7 55.5 16.S

GDP (per employed as % of US-100 level) 100.0 69.6 76.3 S1.2 72.7 S9.2 77.7 23.5

Threshold values ​​(mln USD): - assets - annual turnover * 110 110 S6 25 30 100 39 49 26**

Table note:

* The threshold value of turnover for the last fiscal year within the national territory.

** Estimate based on research by the author of this article.

Merger Control, the international regulation of mergers and joint ventures 2003, a Global Competition Review, London, Law Business Research Ltd, 2002.

The calculations show that at the time of the adoption of the 2002 edition of the Law of the RSFSR dated March 22, 1991 No. 948-1 "On Competition and Restriction of Monopoly Activity in Commodity Markets", the threshold value of the level of state control over economic concentration should have been at the level of 26 million dollars. the value would prevent the natural processes of economic concentration, and a higher increase in the threshold values ​​would lead to a violation of the system of control of economic concentration and the reproduction of the disproportions of economic development left over from the planned economy at the private monopoly level.

In March 2005, the Federal Law "On Amendments to Articles 17 and 18 of the RSFSR Law "On

competition and restriction of monopolistic activity in commodity markets” No. 13-F3 dated March 7, 2005. As a result of the adoption of the law, the threshold values ​​for controlling economic concentration4 were increased by 150 times from 200,000 to 30 million minimum wages when filing petitions with the antimonopoly body and 20 times from 200 thousand to 2 million minimum wages when submitting notifications. The draft Federal Law “On the Protection of Competition”5, approved in general at the meeting of the Government of the Russian Federation on February 3, 2005, retains the principle of calculating the total assets of economic entities.

The increase in threshold values ​​is certainly a step forward on the way to creating competitive, including in the foreign market, production

Foreign Economic Bulletin No. її (November) 2005

private and commercial structures, but not everything is so simple. On the one hand, entire industries may fall out of state control, and on the other hand, since total assets are still considered, almost all large companies will still apply to the antimonopoly authorities with petitions

on the approval of transactions that have absolutely no effect on competition, even when acquiring the most insignificant asset.

1 On March 1, 2005, the Ministry of Economic Development of Russia held a public discussion of the draft Federal Law “On Protection of Competition”.6

During the discussion, the meeting participants spoke in favor of the need to amend the current legislation on antimonopoly regulation in accordance with the current level of development of market relations in the Russian Federation. At the same time, during the discussion, business circles showed serious concern regarding the developed draft law, which allows the antimonopoly authorities to interfere in the activities of economic entities.

According to the author, the introduction of a methodology based on the correlation of existing threshold values ​​in the leading industrial developed countries and the size of GDP per capita of the employed population,7 will provide a scientific basis for the implementation of state control over economic concentration and remove the contradictions between the antimonopoly authorities and business in this area.

Notes:

1 It should be noted that not all of these transactions were completed.

3 Knyazeva I.V. Processes of economic concentration in Russia. Methodological problems of antimonopoly control, an article written for Vestnik MAP Rossii in 2003.

4 The total book value of assets according to the last balance sheet in case of mergers and acquisitions of commercial organizations, in case of acquisition of shares in the authorized capital

5 The Law "On Protection of Competition", after its adoption, should replace the Law of the RSFSR of March 22, 11991 No. 948-1 "On Competition and Restriction of Monopoly Activities in Commodity Markets" and Federal Law of June 23, 1999 No. 117-FZ "On Protection of Competition in the financial services market.

6 The meeting was attended by representatives of federal ministries and departments (Ministry of Economic Development of Russia, Ministry of Industry and Energy of Russia, Federal Antimonopoly Service of Russia, Federal Tariff Service of Russia, etc.), the business community (RAO UES of Russia, OAO Gazprom, OAO AK Transneft, OAO TNK-BP Management”, OAO Russian Railways, etc.] and public organizations(Chamber of Commerce and Industry of the Russian Federation, Russian Union of Industrialists and Entrepreneurs (employers), "Opora Rossii", "Business Russia"].

7 The formula is calculated as follows:

The threshold value of the level of state control of economic concentration in the country under consideration is equal to the product of the weighted average of the threshold values ​​in the seven leading countries of the world, calculated on the basis of the share of GDP in the world economy, and the coefficient calculated on the basis of the level of GDP per capita in the country under consideration, to the weighted average GDP per capita in the seven leading countries of the world.

economic concentration- transactions, other actions, the implementation of which has an impact on the state of competition;

State control over economic concentration, carried out by the antimonopoly authorities, is one of the forms of state control over economic activity business entities. It is important to note that antimonopoly control does not aim to prohibit economic integration and economic concentration, but is aimed at preventing the restriction of competition, the emergence and strengthening of monopolistic activity.

Civil legislation (clause 3, article 57 of the Civil Code of the Russian Federation) in relation to integration business processes establishes that the reorganization of legal entities is recognized as possible only with the consent of authorized government agencies, including antimonopoly ones. This is due to the fact that the processes of economic concentration may be accompanied by an increase in the dominant position of individual economic entities or the creation of organizations that occupy a monopoly position in the market.

State control over economic concentration divided into two main types: preliminary and subsequent.

Preliminary control is carried out until the moment of making transactions and/or processes that act as objects of antimonopoly control or circumstances that may lead to an increase in economic concentration. This type of control is carried out in the form of consideration by the antimonopoly body of applications for giving consent to the actions specified in the application, in accordance with the requirements of the Federal Law "On Protection of Competition". AT this case the consent of the antimonopoly body to the performance of the actions specified in the petition is a necessary condition for the performance of the action, which means the establishment of a permissive procedure for the implementation of actions subject to state control.

The second type of state control over economic concentration - follow-up control, serves to verify the legality of already committed legal actions of entities and is carried out in the form of consideration by the antimonopoly authority of notifications of economic entities about already accomplished facts. The notice must be sent within 45 days of the relevant legal action being taken.

A feature of state control over economic concentration is that, according to Part 2 of Art. 30 of the Federal Law "On Protection of Competition", if the implementation of transactions, other actions fall under the criteria of both preliminary control and subsequent control, these transactions (actions) must be made with the consent of the antimonopoly authority.

Preliminary antimonopoly control or circumstances that may lead to an increase in economic concentration, according to the Federal Law "On Protection of Competition" are:

Merger, accession, creation (in case of payment of the authorized capital by shares (stakes) and / or property of another organization) of commercial organizations;

Transactions with shares (shares), property of commercial organizations, rights in relation to commercial organizations.

Accordingly, the basis for exercising control over economic concentration is the transaction itself for the alienation of shares (shares) business companies, as well as the reorganization procedure or other actions that, in accordance with the law, are considered as an object of control over economic concentration.

Also, as grounds for exercising control over economic concentration, the Federal Law "On Protection of Competition" contains a list of economic criteria (threshold values), if which are exceeded, mergers, acquisitions, creation of companies, acquisition of shares, shares, property, as well as rights in respect of business entities should be carried out with the prior consent of the antimonopoly authority.

These criteria are complex in nature and allow the regulatory authorities to determine in more detail the circle of persons and the list of transactions carried out with the prior consent of the antimonopoly authority.

One of these criteria, enshrined in Art. 27 of the Law, as well as in the preamble of part 1 of Article 28 of the Law, is the amount of the total value of assets on balance sheets as of the last reporting date. The total value of assets in this case should exceed three billion rubles.

Another economic criterion may be the total proceeds from the sale of goods for the last calendar year, which exceeds six billion rubles.

In the presence of at least one of the above economic criteria, with the prior consent of the antimonopoly body, the following types of reorganization of commercial organizations are carried out:

Merger of commercial organizations;

Accession of commercial organizations;

As regards mergers and/or acquisitions of financial institutions, here the economic criterion, if exceeded, the preliminary approval procedure is necessary, the total value of their assets according to the latest balance sheets exceeds the value established by the Government of the Russian Federation (in the event of a merger or acquisition of credit institutions, this value is established by the Government of the Russian Federation). Federation in agreement with the Central Bank of the Russian Federation).

The establishment of commercial organizations is also subject to preliminary control, however, additional criteria are established by the Law regarding this procedure.

With the prior consent of the antimonopoly authority a commercial organization is created if it the authorized capital is paid in shares (stakes) and (or) property of another commercial organization (with the exception of a financial organization), while the newly created commercial organization acquires the rights in respect of these shares (stakes) and (or) property, provided for in Article 28 of the Federal Law "On Protection of Competition ”, and the total value of assets according to the last balance sheet of the founders of the organization being created (their groups of persons) and persons (their groups of persons), whose shares (shares) and (or) property are contributed as a contribution to the authorized capital, exceeds three billion rubles, or if the total proceeds of the founders of the organization being created (their groups of persons) and persons (their groups of persons), whose shares (shares) and (or) property are contributed to the authorized capital, from the sale of goods for the last calendar year exceeds six billion rubles, or if an organization whose shares (shares) and (or) property are contributed as a contribution to the authorized capital, is included in the register of economic entities with a market share of about limited goods more than 35%.

When carrying out transactions with shares (stakes), property of commercial organizations, it is necessary to meet one of the above economic criteria (exceeding the threshold value) in conjunction with the third economic criterion.

Such a criterion, which determines the need to obtain the prior consent of the antimonopoly body when carrying out transactions with shares (stakes), property of commercial organizations, is the requirement that the value of assets according to the last balance sheet of a person (group of persons), shares (shares) and (or) property of which and (or) the rights in respect of which are acquired, exceeds one hundred and fifty million rubles, or if one of the specified persons is included in the register of economic entities with a market share of a certain product of more than 35%.

The law determines that, with the prior consent of the antimonopoly body, the subjects of antimonopoly control make the acquisition of shares if the share of voting shares exceeds 25%, 50%, 75%, and the acquisition of shares in limited liability companies, if the size of the share in the authorized capital becomes more than 1/3, more than 50% or more than 2/3.

Thus, the acquisition of shares (stakes) in the amount from a "blocking" (25%) to a "controlling" (50%) stake does not require approval from the antimonopoly authorities, as well as the transition to a "single share" in the presence of 75 percent participation in the charter capital of a business entity.

In terms of state control of economic concentration, great attention is given to transactions and processes pursuing the goals of reorganization of economic entities. In this case, with the adoption of Federal Law No. 135, according to the plan of its developers, the administrative burden on business entities has been significantly reduced, namely:

The threshold values ​​for preliminary approval of transactions have been increased - up to 3 billion rubles, for notifications of transactions - up to 200 million rubles. This increase, according to the developers of the new law, reduces the number of transactions subject to approval by 6-8 times.

Canceled the approval of each transaction for the acquisition of shares. Obtaining prior permission is now mandatory only when purchasing a blocking stake (25%), a controlling stake (50%) and a stake that excludes the possibility of blocking shareholder decisions by third parties (75%). Thus, the implementation of transactions for the acquisition of 25 + 1, 50 + 1, 75 + 1% of shares is one of the grounds for preliminary state control.

special attention The issues of enforcing competition law and liability for its violation also merit, however, the volume of a scientific article, unfortunately, does not allow to consider these issues from a scientific point of view to a sufficient extent, therefore, these issues should be a topic for a separate study.