Blind Spots in the Procedure for Analyzing the State of Competition in the Commodity Market

Abstract

For the implementation of the “fifth antimonopoly package”, FAS Russia has developed a draft amendment to the Procedure for analyzing the state of competition in the commodity market, approved by Order of FAS Russia dated April 28, 2010 No. 220 (Procedure-220). This project is currently going through the stage of public discussion, which makes relevant its analysis in terms of the challenges of the economy of modern digital markets in general, as well as methodological issues raised by the latest amendments to the Federal Law “On the Protection of competition” of July 26, 2006 No. 135-FZ in particular. The article reveals that the provisions of the project under discussion do not address all the main problems that arise in connection with the analysis of competition in digital markets: methods for analyzing market boundaries at zero prices are not proposed, there are no approaches to assessing network effects, problems of market power in conglomerate mergers are not reflected, the concept of a multilateral market and its relationship with the digital platform has not been clarified. The draft also contains inaccurate wording, leaving freedom of interpretation, which will subsequently create risks of incorrect application of antimonopoly legislation and increase the likelihood of enforcement errors. In addition, the article demonstrates that within the framework of the proposed changes, many questions and problems that are also characteristic of the analysis of traditional markets (the second criterion of the hypothetical monopolist test, analysis of the surmountability of entry barriers, limitations in the use of methods) remain unanswered. Economic analysis of law and Industrial organization theory are used as the methodological basis for the study. The result of the analysis is a set of recommendations for the regulator aimed at reducing the likelihood of enforcement errors arising as a result of gaps antimonopoly regulation. The article is of an applied nature and may be of interest to both regulatory authorities and antitrust experts.