Illegality of Tacit Collusion in Russian Antitrust Legislation: Could Economists Be Useful to Generate Legal Rules?

Abstract

The article is devoted to antitrust policy towards tacit collusion as a form of coordination that restricts competition. Competing approaches to define tacit collusion, i.e. concerted practice and excessive monopoly price as an abuse of dominance, are compared. The evidence that allows to reject the hypothesis on concerted practice as a form of tacit collusion is discussed and compared with the criteria used by Russian antitrust authorities to consider practice as concerted. The standards of proof adopted leave the possibility for type I errors when actions of sellers which had no intention to restrict competition and/or coordinate the prices are qualified as illegal. Moreover, there is a possibility to qualify as illegal the actions that do not comply with the definition of concerted practice in the law "On protection of competition".