“Economic freedom as the basis for developing law and judicial practice in the Russian Federation”

That theme was chosen by “Corporate Counsel Association” Non-Profit Partnership for the Annual Research-to-Practice Conference in St Petersburg with judges of the Constitutional Court of the Russian Federation, Gadzhiev and Yaroslavtsev, representatives of the academic community, law firms and consultancies, companies – members of Russian Corporate Counsel Association. The Conference became a starting event of Petersburg International Legal Forum.

Speaking at the Forum, Deputy Head of FAS Andrey Tsyganov outlined several important factors that determine and direct efforts of the Federal Antimonopoly Service.

First of all, it is constitutional norms. According to Andrey Tsyganov, Russia is one of the few countries in the world where economic competition has a constitutional value, and the principle of supporting competition is formalized in the Constitution of the Russian Federation as one of the pillars of the constitutional system and the prohibition of economic activity aimed a monopolization and unfair competition is an integral element of the system of public protection of human and civil rights and freedoms.

Discussing the practice of the Constitutional Court of the Russian Federation, Andrey Tsyganov stated that the work of the antimonopoly body had been a subject of constitutional control even before the current Constitution of the Russian Federation was adopted: referring the antimonopoly body to one of the branches of power and the procedure for its establishing and appointing the Head of the antimonopoly authority was considered already in 1991-1992 (No.6P findings of the Constitutional Court of 20.05.1992). The modern Constitutional Court repeatedly divulged the constitutional-law meaning of the norms aimed at competition protection. “The findings of the Constitutional Court, its conclusions are a no less important legal source than the Law “On Protection of Competition” for the Federal Antimonopoly Service”, stated Andrey Tsyganov. At the same time he mentioned such controversial issues in the rulings of the Constitutional Court as the powers of the antimonopoly body to issue binding determinations to the authorities, the structure of prohibitions of monopolistic activity and unfair competition, legal grounds for state control and supervision in various forms, and the nature and specifics of punishments for violations of the antimonopoly law.

Regarding the economic freedom principle, the speaker said that true economic freedom is impossible without antimonopoly regulation. The Antimonopoly Service is a special body designed to ensure economic freedom and the balance of interests of participants of economic activity. FAS achieves this objective by enforcement as well as its contribution in developing the law on competition protection. “Russian competition authority has been fighting for economic freedom for already 25 years. Protecting weak parties from market power holders has become an essential component of our work. From one third to half of antimonopoly cases concern protecting business from anticompetitive actions by the authorities”, emphasized Andrey Tsyganov. In his opinion, however, the antimonopoly body does not forget that due to a system of strict prohibitions, mandatory requirements and imperative regulation the antimonopoly body itself can cause certain lack of freedom for entrepreneurs. Based on the goal of optimizing government regulation, FAS undertakes measures to narrow the scope of antimonopoly enforcement. As examples, Andrey Tsyganov mentioned significant decrease of transactions subject to control, excluding the function for keeping the Register of monopolists from the Law and possibility to open cases if private interests of a particular person are infringed, and developing the system of warnings and admonitions.

The Conference organizers specially emphasized the role of the Antimonopoly Service as a link between business and the authorities (including judiciary). Due to specifics of its work, the goal and objectives, and the enormous experience of its specialists, the Federal Antimonopoly Service works directly at the confluence of economic content and legal form on a daily basis. FAS controls not only private persons but also the authorities and local self-government bodies. To a certain extent the Antimonopoly Service pursues an educational function: through competition advocacy, drafting legal acts on a wide range of economic issues, daily enforcement practice it teaches to pay attention not only to the formal but also to economic aspects of relations. The speaker stressed that the Antimonopoly Service regularly organizes special events for representatives of the authorities and local self-government bodies with participation of judges, helping them to get an insight in the economics of business relations, the subtleties of the antimonopoly law and enforcement specifics. “The antimonopoly law is deeply immersed in the real economic life and public progress. It must promptly respond to the modern economic challenges: market globalization, developing principally new technologies, emergence of digital economy and e-commerce, an increased importance of the results of intellectual activity in economic life”, summed up Andrey Tsyganov.