Igor V. Bashlakov-Nikolaev1, Sergey V. Maksimov2
1Institute of Public Administration and Civil Service, Russian Presidential Academy of National Economy and Public Administration, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-5593-1967
2Institute for the Study of Science, Russian Academy of Sciences, Moscow, Russia, sergeymax2006@ yandex.ru, https://orcid.org/0000-0002-2416-9543
Abstract. The article examines the institution of “collective” dominance. Its concept and definition are absent in the Russian antitrust law, but is used in the theory of competition law and law enforcement practice both in Russia and abroad. The legal uncertainty of the signs of collective dominance creates the prerequisites for the unreasonably widespread use of this legal institution and its substitution of legal instruments aimed at combating the most dangerous forms of anticompetitive behavior.
The study allows the authors to conclude that in order to establish the fact of collective dominance, it is necessary to determine not only the market share. Its acquisition by any business entity operating in the oligopolistic commodity market can be recognized not only as a participation in collective dominance and, accordingly, abuses its status. It is also necessary to define a real nature of the interaction between its participants, different from the more dangerous form of anticompetitive behavior — the cartel.
The authors conclude that the classical collective dominance, based on the absence of real competition between the dominants, is the antipode of the cartel (the relevant business entities do not consider it appropriate to agree on the division of the market, fixing the price or volume of goods, or have already abandoned plans to conclude a cartel agreement with competitors based on their economic interests). In this regard, the use of this institution for the purpose of decartelizing the economy cannot give the expected effect. As a first step towards solving the uncertainty problem of the legal institution of collective domination, the authors propose to consider the possibility of amending Articles 5 and 10 of the Federal Law “On Protection of Competition”.
Keywords: oligopoly, collective dominance, individual dominance, abuse of dominant position, cartel
Acknowledgments. The article was funded by RFBR, project number 20-010-00773.
For citation. Bashlakov-Nikolaev I. V., Maksimov S. V. The Phenomenon of Collective Dominance as the Antipode of the Cartel: The Results of a Critical Analysis of Russian and European Approaches. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 83—91. (In Russ.) DOI: 10.12737/jrl.2021.047