Chapter 12 Legal regulation securities market 12.1. The concept of public credit. Types of securitiesCurrently, a securities market has been formed in Russia. In addition to civil circulation, securities serve the public interests of the state. Through the release and

Basic concepts

The range of goods is a set of goods, united by any one or a combination of characteristics. An auction is a method of selling goods at a public auction to a buyer who has offered highest price Exchange trading organized trading conducted by the exchange. The exchange is a trading organizer who has an exchange license. Only a joint - stock company can be an exchange . Exchange transaction a contract (agreement) registered by the exchange, concluded by participants stock trading in relation to an exchange commodity during exchange trading. Brand (branding) stigma; brand (from the English "brand" product brand) management principle (brand management), which consists in the allocation of individual brands (trademarks, trademarks, service marks) into independent marketing objects. A broker is an exchange intermediary who concludes exchange transactions on behalf of a client and at his expense, on behalf of a client and at his own expense, or on his own behalf at the expense of a client. Brokerage is the execution of exchange transactions by a broker on behalf of a client and at his expense, on behalf of a client and at his own expense, or on his own behalf at the expense of a client. Horizontal sales (marketing) networks are a system of interdependent organizations specially created for the organization of sales and direct marketing of goods. A dealer is an exchange intermediary who concludes exchange transactions on his own behalf and at his own expense for the purpose of subsequent resale on the exchange to receive revenue (profit). Dealer activity is the commission of exchange transactions by a dealer on his own behalf and at his own expense for the purpose of subsequent resale on the exchange. Distributor is a wholesale organization that sells goods purchased under an agreement with a certain manufacturer on a long-term basis. Application for an offer and (or) acceptance of an offer to conclude one or more contracts at an organized auction. The manufacturer is an organization regardless of its form of ownership, as well as an individual entrepreneur producing goods for sale to the consumer. Market infrastructure is a set of organizations that ensure the normal activity of participants in commodity circulation. Classification of commodity markets is a set of criteria that determine the types of commodity markets. A clearing broker is a clearing participant that is a party to agreements concluded on the basis of orders submitted not in its interests by another person, a participant in organized trading. The conjuncture of the commodity market is a temporary economic situation, characterized by a set of features that express the state of the commodity market at a certain point in time. Marketing is a business management system based on a comprehensive market analysis, including the study and forecasting of demand, prices, advertising, etc., and aimed at minimizing risk. A market maker is a trading participant who, on the basis of an agreement, one of the parties of which is the trade organizer, assumes obligations to maintain prices, demand, supply and (or) trading volume financial instruments , foreign currency and (or) goods on the terms established by such an agreement. The operator of commodity deliveries is an organization that carries out, controls and records commodity deliveries under obligations admitted to clearing, which has received accreditation to perform the specified functions, unless otherwise provided by the Federal Law "On Clearing and Clearing Activities". Wholesale trade is an integral part of domestic trade; the initial stage of circulation of goods, their movement from manufacturers to retailers. The objects of sale and purchase are large consignments of goods. The main forms of wholesale trade are fairs, commodity exchanges, auctions, etc. The wholesale market is a key link in the organization of the trading business, providing the relationship between production and consumption. Trade organizer is a person who provides services for conducting organized trading on the commodity and (or) financial markets on the basis of an exchange license or a trading system license (clause 6, article 2 of the Federal Law of November 21, 2011 No. 325-FZ "On organized trading") . Organized trades are trades held on a regular basis according to established rules, which provide for the procedure for admitting persons to participate in trades in order to conclude contracts for the sale of goods, securities, foreign currency, repurchase agreements and agreements that are derivative financial instruments (clause 7 of Art. 9 of the Federal Law "On organized auctions"). Public Relations (PR) is a type of activity aimed at forming a favorable public opinion about the company. Buyers are legal and (or) individuals who use, purchase, order or have the intention to purchase or order goods and services. An intermediary in commerce is a person (firm or organization) standing between the producer and the consumer and facilitating their turnover; in law, a person who assists the seller and (or) the buyer in the conclusion and execution of contracts. Consumers of advertising are persons whose attention is drawn to the object of advertising by advertising. The consumer market is the market of foodstuffs, socially significant goods and medicines. Clearing Rules document(s) approved (approved) by the clearing organization and containing (containing) the terms of the contract for the provision of clearing services and the requirements for clearing participants. Sale of goods (works, services) transfer on a reimbursable basis (including the exchange of goods, works, services) of the ownership of goods, the results of work performed by one person for another person, the provision of services for a fee by one person to another person Advertising information disseminated in any way, in any form and using any means, addressed to an indefinite circle of people and aimed at drawing attention to the object of advertising, generating or maintaining interest in it and promoting it on the market. Advertiser - manufacturer or seller of goods or other person who determined the object of advertising and (or) the content of advertising. An advertising producer is a person who fully or partially converts information into a form ready for distribution in the form of advertising. An advertising distributor is a person who distributes advertising in any way, in any form and using any means. Retail trade organizations of trade organizations that sell goods to the final consumer (retail). Market is a set of socio-economic relations between sellers and buyers; the sphere of potential exchanges through which the sale of goods and the final recognition of the social character of the labor contained in them is carried out; a mechanism (institution) that brings together buyers (demanders) and sellers (suppliers) of certain goods and services Market economy a system of economic freedoms operating within the rigid framework of the law, since freedom without law can lead to chaos and violence, and law without freedom is fraught with tyranny states. Sales of goods is a system of measures for the sale of goods. Demand is the amount of goods and services that can be sold in a given period in the market at the current price level; a specific need backed by purchasing power. The structure of the commodity market is a set of links united by contractual and economic relations involved in the promotion of goods from manufacturers to consumers. The goods are an object of civil rights (including work, a service, including a financial service) intended for sale, exchange or other introduction into circulation, things not withdrawn from circulation (with the exception of securities, foreign currency) of a certain kind and quality, any state of aggregation, admitted to organized trading. Commodity circulation is a set of interconnected acts of purchase and sale of a mass of goods created in various areas economic activity. Commodity turnover is the volume of sales of goods and the provision of services in monetary terms for a certain period of time. Commodity market is the sphere of circulation of goods (including foreign-made goods) that cannot be replaced by other goods, or interchangeable goods, within the boundaries of which (including geographical), based on economic, technical or other possibility or expediency, the purchaser can purchase goods , and there is no such possibility or expediency outside of it. Commodity producer manufacturer of goods. Bidding is a form of trade in which the buyer announces a competition for sellers with certain technical and economic characteristics. Bidding is carried out in the form of an auction or competition. Trading system is a trading organizer who has a trading system license. Chambers of Commerce and Industry in the Russian Federation are non-governmental non-profit organizations that unite Russian enterprises and Russian entrepreneurs to provide them with various kinds of services (information, consulting, arbitration, etc.), as well as to represent and protect their collective interests within the country and abroad. Trade and distribution network internal trade apparatus and an external network of trade intermediary enterprises through which the sale of products is carried out. Sales agencies are a special kind of intermediary, looking for buyers, negotiating with them, informing sellers about the entrepreneurial environment of the market. Trading houses are diversified trade enterprises integrated into the manufacturing, financial and foreign economic spheres. Trading networks a set of trading enterprises located within a specific territory or under common management. A sales agent is a person who sells the goods of one or more enterprises under a contract, operating in highly competitive markets. A bidder is a person who is allowed to participate in an organized auction. Price is the monetary expression of the value of a commodity. A central counterparty is a legal entity that is one of the parties to the agreements to be entered into, the obligations of which are subject to inclusion in the clearing pool, which has a license from a non-bank credit institution to carry out banking operations, as well as a license to carry out clearing activities and has received the status of a central counterparty in accordance with Federal Law dated 7 February 2011 No. 7-FZ “On Clearing, Clearing Activities and the Central Counterparty”. The fair is an annual market. Periodically, as a rule, annually, auctions organized in a specified place.

Commodity market and entrepreneur

It seems reasonable to assert that the general categories of the market economy given above are subject to study and teaching within the framework of the course of business law as the closest to it in a number of legal disciplines studying market relations. The Civil Code of the Russian Federation contains practically no references to the market, and this is quite understandable, since the Code operates mainly with the category of property relations. In business law, the subject of legal regulation is entrepreneurial activity aimed at systematic profit, which can only be carried out in a market economy. That's why business law is an integral part of the legal system of Russia, as the market is an integral part of the market economy.

The market serves as the main regulator of the economy. The difficulties of the domestic economy are explained by the fact that the country still has only a semblance of a market, its imitation form. Meanwhile, as B. I. Puginsky notes, “civil law does not define the essence of the market, does not indicate the direction and methods of its development. It is obvious that this problem belongs to the subject of the science of commercial law and to the sphere of regulation of trade legislation. "" We fully agree with the respected scientist, only one should distinguish between the market and trade. The market is a special economic category, and trade is a branch of the economy. The market is a sphere potential exchanges.When the exchanges become real, we can talk about the final (and at the same time the initial) stage of the reproductive economic cycle.With this approach, the subject of the science of commercial law is trade as a type of entrepreneurial activity.The science of business law studies a wider range of various kinds activities aimed at systematic profit, and not just trade.

In the legislation on entrepreneurial activity, market categories are quite common, for example, in the norms of the Law on the Securities Market (Articles 1-7, etc.), the Tax Code of the Russian Federation (Articles 40, 188, 214 "), the Law on Currency Regulation. The Law on foreign investments in the Russian Federation (Article 18) and many others.

The concept of "commodity market", as well as the concepts of some other types of markets, has acquired legal significance and is widely used in regulations. They were introduced into Russian legislation with the adoption of the Law of the RSFSR "On Competition and Restriction of Monopoly Activities in Commodity Markets" and some other laws.

The Law on Protection of Competition defines a commodity market as a sphere of circulation of goods (including foreign-made goods) that cannot be replaced by other goods, or interchangeable goods, within which (including geographical) based on economic, technical or other possibility or expediency, the purchaser can purchase the goods, and such an opportunity or expediency is absent outside of it (clause 4, article 4).

A religious worldview has a significant influence on the nature and content of the relationship between the subjects of market relations. In this regard, the materials of the conciliar congresses of the World Russian People's Council (WRIS - international public organization, founded in May 1993 under the auspices of the Russian Orthodox Church with the aim of consolidating the Russian people). For example, at the 7th Cathedral Congress the topic "Faith and Labor: Spiritual and Cultural Traditions and the Economic Future of Russia" was discussed; at XI - "Wealth and Poverty: Russia's Historical Challenges".

In a market economy, commodity production, the entrepreneur acts as a commodity producer. The results of its production and economic activities are goods, performance of work, provision of services

Product - the most important object market economy - a product of labor that satisfies a particular social need, acquired through purchase and sale or exchange. It has two properties: 1) satisfy the needs of people (use value); 2) to exchange (the proportions in which one commodity is exchanged for another is its exchange value).

These quality characteristics goods, the entrepreneur is guided in the implementation of his production and economic activities, conducting marketing research, analyzing the market situation, and the behavior of the goods on the market.

Marketing in the activities of an entrepreneur-commodity producer and its legal support

Not only marketers, managers, economists, sociologists, representatives of engineering sociology and psychology, computer science, technical branches of knowledge, but also other specialists in the field of the market economy are talking about marketing today. One can only welcome the appeal of lawyers in their scientific research to the legal aspects of this unique phenomenon of the market economy^.

The British Institute of Marketing defines it as a function of the company's management, consisting in the organization and management of the entire complex business activity associated with identifying the purchasing power of the consumer in order to ensure that the company receives the profits planned or achieves other goals.

In a modern enterprise, marketing is not at the end, but at the beginning of the reproduction cycle and has an impact on economic analysis, planning, assortment design, manufacturing process, as well as for distribution, marketing of products and provision of after-sales services

Marketing is working with the market for the sake of making exchanges, researching and forecasting the development of the market, the purpose of which is to satisfy the needs and requirements of a person, that is, to achieve consumer satisfaction. Anyone who wants to sell successfully and effectively must find buyers, identify their needs, design appropriate products, market them, stock them, ship them, negotiate prices, and so on. “For IBM, marketing has always been a source of joy and pride. It is the delivery vehicle and the means by which IBM announces itself to the rest of the world: what it believes, what it hopes, what it intends to do, and what it intends to achieve.”

The company proclaims itself to the rest of the world mainly with its goods, which have trademarks, service marks, and their own brand. That is why in Russia such a direction of marketing as branding (brand management) has been developed. The essence of branding is the implementation of marketing activities with a specific trademark, service mark, when the trademark becomes a brand and “sells itself” thanks to the favorable brand reputation among consumers created by marketers, and, accordingly, the subsequent costs of selling manufactured goods are sharply reduced.

Successful businessmen and marketing specialists also speak of marketing as a kind of “business philosophy”, “philosophy of doing business”, and not only as the most important link in the production and marketing management system. Until its spirit and ideas permeate the entire company, will not penetrate into its every cell, starting from the highest echelons of management, marketing will never become effective.

The official reference guide to marketing, issued by the European Federation of Associations of Economics and Management Consultants (FEACO - FEACO), includes 14 types of services, including such as social and economic research and forecasting, advertising and sales promotion, corporate image and public relations, etc.

P. Drucker believes that the main goal of marketing is to achieve such a market position of the company, in which efforts to sell products, goods (services) are unnecessary. “Its goal is to get to know and understand the customer so well that the product or service will fit the customer exactly and sell itself”^ It is clear that the main component of marketing is the activity of ensuring that the right products and services are available to the right audience, in the right place, in at the right time, at the right price, with the right communication and promotions.

All this is aimed at creating consumer demand for the company's products, since if the company's products are not in demand in the market, no business goals can be achieved.

Without making a profit, any business loses its original meaning. “In fact, the decisive factor in determining the value of an innovation is not its originality, not its scientific content, and not even the originality of the solution, but only success in the market.” In a market economy, there cannot be a product or service, another good that is not recognized by the market. And only in the market, in the end, entrepreneurs sell their product and make a profit, the basis of their further entrepreneurial activity.Therefore, entrepreneurship is a concrete activity, a practice.

The role of law in the implementation of marketing activities is to use such legal means that would contribute to the achievement of the entrepreneurial goals of the enterprise. First of all, these are legal means that provide high quality goods, its patent and license protection and purity, priority protection of the interests of the consumer, etc.

Of particular importance are the provisions of regulations that ensure the process of promoting the product to the market, its implementation and after-sales service. The key role here is played by the contract as an economic and legal tool that regulates the relationship between the subjects of a market economy.

The law consolidates and regulates a significant area of ​​relations related to market activity: the legal status of market entities (manufacturers, intermediaries, consumers), rules of conduct in the market, responsibility for their violation. This is especially important for an entrepreneur, as different markets have different “rules of the game”. Legal support for marketing includes at least:

1. legal consolidation of marketing as a necessary element of an enterprise's activity in a market economy;
2. definition legal status marketing service (marketer) at the enterprise;
3. legally binding conditions for the implementation of marketing activities by the enterprise;
4. reflection of marketing requirements in contracts concluded with customers (marketing plan indicators should be reflected or fixed in specific contracts);
5. legal regulation of relations for the provision of marketing services.

Legal consolidation of marketing as a principle of an enterprise's activity in a market economy can be ensured by including in the company's charter general norms relating to marketing, including its priority in determining the tasks that arise between departments and services. With the help of these norms, the implementation of marketing programs developed at the enterprise is also ensured.

Since the enterprise independently organizes its activities, including independently determines the structure of management bodies and independently plans production and sales, it should be recognized that the organization of marketing at the enterprise is regulated by local legal acts of the enterprise itself.

In the regulation on the marketing service, along with the goals, tasks, the issues of activity should be indicated, which include, for example: 1) development of marketing programs for manufactured goods; 2) market research; 3) development of new types of products and trademarks; 4) determination of product prices; 5) implementation of advertising and Maintenance consumers; 6) sales organization; 7) transportation of goods; 8) commercial logistics; 9) general management of marketing activities, etc.

Legal regulation of relations for the provision of intermediary marketing services is carried out through contracts for the provision of marketing services. When preparing the text of a marketing contract, efforts should not be concentrated on searching for a contractual model in the Civil Code of the Russian Federation that could be “linked” with marketing research, but on the development of a specific contractual obligation, the formation of contractual conditions that would regulate in detail all aspects of the relationship of counterparties^.

Advertising is an integral part of marketing. The legislator, and after him, many researchers consider advertising as information about an object that satisfies four legally formulated features: 1) advertising is widespread information about the object of advertising; 2) advertising is intended for an indefinite circle of persons; 3) advertising is aimed at drawing attention to the object of advertising, the formation or maintenance of interest in it; 4) advertising is aimed at promoting the object of advertising on the market.

The Advertising Law excludes political advertising from its scope; reference and information and analytical materials; information, disclosure or distribution or bringing to the consumer of which is mandatory in accordance with federal law; signboards and signs that do not contain information advertising nature"; announcements of individuals or legal entities that are not related to the implementation of entrepreneurial activities; elements of product packaging; an indication of the product, organically incorporated into works of science, literature and art, etc. (Article 2 of the Law on Advertising).

Advertising and other offers addressed to an indefinite circle of persons are considered as invitations to make offers, unless otherwise expressly stated in the offer (clause 1, article 437 of the Civil Code of the Russian Federation). If the proposal itself contains all the essential terms of the contract and the will of the person making the proposal to conclude the contract on the specified conditions with anyone who responds is seen from the proposal, then such an offer is recognized as a public offer (clause 2 of article 437 of the Civil Code of the Russian Federation), valid for two months from the date of distribution of the advertisement, provided that it does not specify a different period (Article 11 of the Law on Advertising).

Depending on ad compliance mandatory requirements advertising is divided into legal and illegal. Unfair advertising traditionally includes unfair, unreliable, unethical, hidden advertising. In the literature, there were proposals to single out unaesthetic advertising as a separate type^

The basis of the legislation on advertising is the Law on Advertising. It defines the goals, scope and composition of advertising legislation, contains the relevant conceptual apparatus, formulates general and special requirements for the content and distribution of advertising, determines the basis for self-regulation of the advertising market and state control over compliance with advertising legislation.

Relations arising in the process of production and distribution of advertising are regulated not only by the Law on Advertising, but also by other federal laws and by-laws. regulations.

Describing the legislation regulating advertising activities, one should cite the Agreement on Cooperation of the CIS Member States in the field of regulation as an example of an international treaty. promotional activities 2003 Among the documents that do not have a regulatory nature, it is necessary to note the International Code of Advertising Activities, the first version of which was approved by the International Chamber of Commerce in 1937. In 1997, the Russian Public Council for Advertising Russian Federation. The Association of Communication Agencies of Russia in 2002 approved the Russian Advertising Code.

The most important form of legal regulation of advertising relations between equal subjects is a contract. There are the following main specific types of contracts concluded in the advertising market: 1) an agreement for the creation of an advertising work and the production of promotional materials (performance of advertising work); 2) an agreement for the provision of services for the dissemination of advertising (provision of advertising services); 3) an agreement for the provision of intermediary advertising services (as a rule, in practice it is concluded in the form of an agency agreement, less often - a commission agreement, even more rarely - an order), which can be aimed both at ensuring the production and placement of advertising materials by third parties ; 4) contract for holding advertising campaign is a mixed contract under which the advertiser undertakes to produce and place advertisements within a single advertising campaign, and the advertiser undertakes to accept and pay for the work performed and services rendered.

State control over compliance with advertising legislation is carried out by the Federal Antimonopoly Service of Russia (its territorial departments), including: 1) warns, detects and suppresses violations by physical or legal entities RF legislation on advertising; 2) initiates and considers cases on the grounds of violation of the legislation of the Russian Federation on advertising.

In addition, the FAS Russia, within its competence, protects competition, including in the advertising market, suppressing illegal monopolistic actions (Article 22 of the Law on Protection of Competition).

The Code of Administrative Offenses of the Russian Federation contains a number of articles describing the composition of administrative offenses in the field of advertising and establishing sanctions.

Public relations (public relations) - the activity of organizing a positive public opinion about the company, ensuring favorable publicity about it as an organization with high civic responsibility, as well as counteracting unfavorable information and rumors.

Lecture, abstract. 12.2. The concept of a commodity market - the concept and types. Classification, essence and features. 2018-2019.

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12.1. Legal regulation of competition and restrictions on monopolistic activities in commodity markets and financial services markets « | » 12.3. Subjects of competition in commodity markets - The dominant position of an economic entity in the market

UDC 346.62 + 346.542

S.S. Tatarinova* LEGAL REGULATION OF DETERMINING THE BORDERS OF THE COMMODITY MARKET**

The article deals with the issues of legal regulation of determining the boundaries of the commodity market. The importance of the correct and precise definition of boundaries for the purposes of analyzing the state of the competitive environment in the product market is emphasized. Changes in the normative regulation of the mechanism for assessing competition in the commodity market are analyzed. A comparison is made of the assessment mechanisms adopted in Russia and abroad, including at the level European Union. It is concluded that it is possible to use the experience of foreign countries to improve the mechanism for determining the boundaries of the commodity market in the Russian Federation.

Keywords Keywords: legal regulation, commodity market, determination of the boundaries of the commodity market, competition assessment, mechanism for assessing the competitive environment.

The concept of "commodity market" is one of the key categories in competitive legal relations. An accurate definition of this concept is necessary for the purposes of antimonopoly law. It is through the category of "commodity market" that many of the fundamental definitions of competition law are revealed.

As K.Yu. Totiev, "commodity market" as legal concept is used in fourteen articles of the Federal Law "On Protection of Competition", which is more than a quarter of the total number of its articles. Because of this, this concept is one of the most used legally significant categories of domestic antimonopoly legislation.

The problem of defining the boundaries of the commodity market is closely related to the problem of defining the concept of "commodity market". It is the identification of boundaries that helps to define a particular commodity market as isolated, to separate it from other commodity markets. The mechanism for determining the boundaries of a product market is the tool that allows the antimonopoly authorities to assess the state of competition in a particular product market.

Analysis and assessment of the state of the competitive environment in the product market are a necessary part of the implementation of the functions of state control over compliance with antimonopoly laws, for example, when creating and reorganizing commercial and non-profit organizations, suppression of violations of articles of the Federal Law “On Protection of Competition”, etc. Each of the emerging product markets is distinguished by its own characteristics, primarily by the criteria for interchangeability and a set of interchangeable goods, geographical boundaries, and the composition of sellers and buyers. In general, a complex, changeable system of numerous local, regional, national sections of the world commodity markets operates on the territory of the country. On the one hand, each commodity market is relatively isolated due to a certain composition of participants (sellers and buyers), on the other hand, there are various connections between commodity markets. For example, buyers can switch from one market to another, sellers from other markets can come to the market, etc. At the same time, different relationships between economic agents can develop in each product market.

* © Tatarinova S.S., 2014

Tatarinova Svetlana Sergeevna ( [email protected]), Department of Civil Procedural and Entrepreneurial Law, Samara State University, 443011, Russian Federation, Samara, st. Acad. Pavlova, 1.

** The study was carried out as part of a grant from the President of the Russian Federation for state support young students at the expense of the federal budget (MK-5828.2012.6).

subjects. Accordingly, the situation in each product market should be assessed and monitored separately. The effectiveness of antimonopoly regulation largely depends on the reliability of the results of the analysis of the characteristics of the commodity market, primarily on the correct definition of its product and geographical boundaries (i.e., in which groups of interchangeable products and in which territories the goods are circulated) .

The concept of "borders" has consistently been used in all definitions of the commodity market in various forms. In this regard, let us first turn to the definitions of the concept of "commodity market", which existed in Russian legislation from the 90s to the present day.

The first definitions of the term "commodity market" were formulated in the Law of the RSFSR of March 22, 1991 "On Competition and Restriction of Monopolistic Activities in Commodity Markets". In this normative act, two definitions were used, dividing the commodity market into two levels - republican and local. Under the republican commodity market was understood the sphere of circulation of goods within the borders of the RSFSR, while under the local commodity market - the sphere of circulation of goods within the borders of the republic that is part of the RSFSR, autonomous region, autonomous district, territory, region.

The main problem with both of the above definitions was that commodity circulation could actually go beyond the boundaries of the commodity market outlined in the law. In practice, it is quite possible that along the border of some locality on both sides of it are shops that sell exactly the same or interchangeable goods. However, based on the legal definition of a commodity market, such goods should have been considered circulating in different commodity markets, and, consequently, competition between them was also excluded. It became obvious that such a mechanism for delimiting markets is biased and contributes to the distortion of competition in both neighboring markets.

An attempt to correct the current situation was made with the adoption of the State Program for the Demonopolization of the Economy, approved by Decree of the Government of the Russian Federation of March 9, 1994 No. 1991. The novel was to reduce the concept of a commodity market not to the specific boundaries of a region, district, etc., but to introduce the concept of “geographical boundaries of a commodity market” following the product, and not tying the product to a territory defined by law.

When amending the Law of the RSFSR of March 22, 1991 "On Competition and Restriction of Monopolistic Activities in Commodity Markets" in 1995, the definition of commodity market was changed and fixed in the following edition: "commodity market is the sphere of circulation of goods that do not have substitutes or interchangeable goods on the territory of the Russian Federation or part of it, determined on the basis of the economic ability of the buyer to purchase goods in the relevant territory and the absence of this opportunity outside it. However this definition is also not perfect, since it refers only to the “territory of the Russian Federation”. The limitation of the commodity market by its “geographical” borders again did not receive legislative consolidation.

The situation changes significantly only with the adoption of the new Federal Law of July 26, 2006 No. 135-F3 "On Protection of Competition", which formulated a new concept of the commodity market. In paragraph 4 of Art. 4 of this Federal Law, the commodity market is defined as the sphere of circulation of goods (including foreign-made goods) that cannot be replaced by other goods, or interchangeable goods, within which (including geographical) based on economic, technical or other feasibility or expediency the purchaser can purchase the goods, and there is no such possibility or expediency outside of it.

Commenting on the novelties of the Law on Protection of Competition of 2006, A.N. Varlamova points out that such a sign as the geographical location of a commodity market on the territory of the Russian Federation or its part is excluded from the definition. In other words, there was a globalization of this concept.

Despite all the changes in legislation that have taken place in recent years, the issue of the territorial boundaries of the commodity market remains very complex and insufficiently developed today. At the same time, it should not be forgotten that the establishment of products and the geographical boundaries of the market is essential. In case too broad definition beyond its borders, the level of competition in the market may be overestimated, and the share of the dominant enterprise underestimated. On the contrary, an overly narrow definition of market boundaries leads to an overestimation of the share of the dominant enterprise and an underestimation of the characteristics of competition.

Normative consolidation of the procedure for assessing the state of competition in the commodity market is used in many foreign countries. For example, in the United States there are “Recommendations on horizontal mergers of companies”, as well as for

vertical mergers, the unrepealed fourth section of the previous edition of the 1984 “Recommendations” applies. In the countries of the European Union, there is a Notice of the Commission of the European Community on the determination of the appropriate leverage for the purposes of Community competition law. Similar regulations exist in the UK, Japan, Canada, Australia, Brazil and other countries.

Russian practice has also long ago come to an understanding of the need for regulatory consolidation of mechanisms for assessing competition in the commodity market. Order of the SCAP of the Russian Federation dated October 26, 1993 No. 112, which approved " Guidelines to determine the boundaries and volumes of commodity markets ", became the first normative document in this area. Since 1997, the "Procedure for analyzing and assessing the state of the competitive environment in commodity markets" has been in force, approved by Order of the Ministry of Antimonopoly Policy of Russia dated December 20, 1996 No. 169. In August 2006, the Order of the FAS Russia dated

April 25, 2006 No. 108 "On Approval of the Procedure for Analyzing and Evaluating the State of the Competitive Environment in the Commodity Market", which is a new version of the previously existing document.

To date, to analyze the state of competition in the commodity markets of the Russian Federation, the Procedure for analyzing the state of competition in the commodity market, approved by the Order of the Federal Antimonopoly Service of Russia dated April 28, 2010 No. 220 (as amended on March 12, 2013), is applied. In accordance with clause 1.3 of this Procedure, the analysis of the state of competition in the product market includes the following steps: determining the time interval for researching the product market; definition of products and the boundaries of the commodity market; determination of the geographical boundaries of the commodity market; determination of the composition of economic entities acting on the commodity market as sellers and buyers; calculation of the volume of the commodity market and the share of economic entities on the market; determination of the level of concentration of the commodity market; determination of entry barriers to the commodity market; assessment of the state of the competitive environment in the commodity market; drawing up an analytical report. Thus, the definition of the boundaries of the commodity market by the Russian legislator is recognized as one of the main mechanisms for assessing the state of the competitive environment.

A correct assessment of specific actual circumstances, taking into account the above criteria, will correctly determine the scope of circulation of goods.

It should be noted that recently Russian practice determining the boundaries of the commodity market

tends to converge with the practice of foreign countries. The experience of foreign legislation is successfully applied in Russian mechanisms for determining the leverage. So, for example, in France, when determining the appropriate market, such components as the product boundaries of the market, its geographical boundaries, as well as characteristics demand for this product.

As in the Russian Federation, in France there are multi-level commodity fisheries. A geographic market can be national, regional, or local. It is enough that it covers a significant part of the territory of the state. One of the most important criteria for delimiting a geographic cap is transportation costs. The more expensive the transportation, the narrower the market.

At the same time, drawing out the boundaries of commodity markets, as a rule, is the first step in considering almost any case. For this reason, the correct conduct of this procedure is the key to a well-founded antitrust investigation. The boundaries of commodity markets are not set "at will" or "at the discretion" of the antimonopoly authority, but on the basis of a balanced economic analysis. Moreover, the standards of proof must be quite high. Otherwise, there is a significant risk that the antimonopoly policy will lose its objectivity.

Similar national norms and rules for analyzing the competitive environment are also applied at the level of the European Union (hereinafter referred to as the EU). The procedure for determining the boundaries of the product market is the basis for the application of competition rules in the EU. In European practice, for the purposes of analyzing the competitive situation on the market, the hypothetical monopolist test, also known as SSNIP (small but significant non-transistory increase in prize, is widely used).

It should be noted that the judiciary plays a significant role in the definition of the commodity market in the EU. At the same time, the courts of the European Union, considering specific cases of violation of competition, take into account not only formal or legal grounds, but also examine the economic arguments put by the antimonopoly authorities as the basis for one or another of their decisions.

The EU Court of Justice in its decisions does not define the concept of a commodity market, however, when studying it, it also uses the category of interchangeability of goods.

At the same time, when considering the issue of interchangeability of goods, the EU courts are guided by both legal and economic criteria, pre-

stipulated by regulatory enactments, as well as an analysis of the specific situation that has developed on the market, including using criteria such as price, physical properties product and its application.

An example would be the case of United Brands, where the Court of Justice concluded that a particular appearance, taste and physical properties of bananas make it possible to distinguish a separate market for bananas, thus separating it from the general market for fresh fruits. In another case, ICI and Commercial Solvents v Commission, the court recognized that there were no substitutes for nitropropane, which was supplied to another company - Zoja - as a raw material for the production of medicines, citing the fact that the use of other raw materials by Zoja would require it to additional costs.

Similar examples of court decisions can be found in the Russian judicial practice. So, for example, in the case of OAO Shaturtorf, by the decision of the Moscow Arbitration Court, left unchanged by the appellate instance, the inclusion of the company in the Register of business entities with a market share of more than 35% on the market of a certain product was invalidated with the motivation for the conclusion that peat can be replaced by any of the types of fuel included in the commodity group "Fuel". However, the Court of Cassation reversed the decision arbitration court and the decision of the appellate instance on the grounds that the existing boiler house of SE "Zhilap" cannot use other types of fuel, in addition to milled peat. The case also includes a letter from the Institute of Microeconomics dated June 15, 2000, which states that when switching to other types of fuel for the consumption of milling peat substitutes, technical re-equipment will be required. production capacity.

Under the relevant geographical market, the Court of Justice understands such an area within which certain economic entities are involved in the supply and consumption of relevant goods and services, the conditions of competition within which are homogeneous and which can be separated from a neighboring geographical area, since, in particular, the conditions of competition in these areas differ significantly. However, as A.N. Golomolzin, the countries of Northern Europe do not agree with the procedure for determining the market used by the European Commission, since, in their opinion, this procedure can lead to discrimination of small countries. The so-called discrimination lies in the fact that when determining the national market in a small state, the merger of companies in this state may be difficult. This is primarily due to the fact that due to the small coverage of the commodity

market, companies reorganized through a merger run the risk of immediately becoming dominant in the national market. At the same time, their level of competitiveness in the world market can be extremely low. For large states, however, this problem is not so urgent due to the many times greater coverage of the national market.

In conclusion, the judiciary can play an important role in raising the standards of evidence used by competition authorities. It is not uncommon for a judicial body to cancel a decision of the European Commission not on formal or legal grounds, but due to insufficient persuasiveness of the economic argument. It seems that the use of such an approach would be timely on the part of the Russian judicial community as well. Russian law enforcement practice knows many examples when the courts canceled the decisions of the antimonopoly authorities. However, this did not always happen due to gaps in the economic logic of the latter. Closer attention to the validity of economic arguments in the course of the proceedings will allow bringing to a qualitatively new level not only the work of the judiciary, but also the antimonopoly authorities themselves. Such a development of events would be positively welcomed by practitioners of antimonopoly regulation in the Russian Federation.

Summing up, we note that today one of the key points in the regulation of the commodity market is the question of determining the boundaries of the commodity market in each case. To date, this issue is quite complex and legally insufficiently developed. In our opinion, uniform clear criteria for determining the boundaries of the commodity market are necessary for the uniformity of law enforcement practice, in order to clarify the transparency of the application of antimonopoly legislation for all participants in market legal relations.

Examining the law enforcement practice of the European Union, one cannot fail to note the significant role played by the EU court in the process of assessing the state of competition in the product market, as well as the formation of standards for the application of criteria for assessing the competitive environment by antimonopoly authorities. Given the ever-increasing role of the Russian judiciary in the application of antimonopoly legislation, the study and analysis of such practices of foreign countries may be useful for improving the practice of analyzing competition in the commodity market in the Russian Federation, in particular, regulating such a difficult issue as determining the boundaries of the commodity market.

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S.S. Tatarinova*

LEGAL REGULATION OF DELIMITATION OF COMMODITY MARKET

The problems of legal regulation of delimitation of boundaries of commodity market are regarded in the article. The importance of correct and precise delimitation for the analysis of the state of competitive environment in the commodity market is emphasized. Analyzes alteration of normative regulation of mechanism of evaluation of competition in the commodity market. The comparison of mechanisms of evaluation admitted in Russia and abroad, including the European Union, is carried out. The conclusion about the possibility of applying foreign experience for the improvement of the mechanism of delimitation of commodity market in the Russian Federation is made.

Key words: legal regulation, commodity market, delimitation of commodity market, evaluation of competition, mechanism of evaluation of competitive environment.

* Tatarinova Svetlana Sergeevna ( [email protected]), the Dept. of Civil Procedural and Enterpreneurial Law, Samara State University, Samara, 443011, Russian Federation.