Expanding Boundaries of Antimonopoly Liability in Russian and European Law: Effective Market Regulation or Creating Legal Uncertainty?

Abstract

Today, the trends in the development of antimonopoly legislation are such that the industry is formed not only within the framework of the national legal regime of states, it is also built through the implementation of existing international legal institutions into the domestic legislation of a particular state. In this context, the Russian legal order is also making appropriate attempts to adapt some of the institutions of European law, in particular on the issues of imputing liability for violations of cartel prohibitions. In the presented article, the author made an attempt to assess the most striking trend in antimonopoly regulation — the prospects for introducing the institution of antimonopoly liability in relation to a corporate group into the Russian legal order (through the prism of analyzing the antimonopoly legislation of the countries of the European Union). The author pays special attention to the grounds for imputing liability to a legal entity for violation of antitrust laws committed by another legal entity within the same corporate group. Special attention is paid to corporate structures of the conglomerate type in the context of the applicability of Art. 101 of the Treaty on the Functioning of the European Union to these groups of companies. In a recent judgment in the Sumal case, the European Court of Justice ruled that the injured parties of a cartel could, under certain circumstances, bring a claim for damages against a subsidiary when the parent company was found guilty of this violation. While some authors argue that the court actually redefined the concept of an economic entity, the author refers to the case law of the European Court of Justice and proves the existence of a similar practice of imputing liability in the Russian legal order. The article draws conclusions regarding the contradiction between objectives of antimonopoly regulatory policy and the general principles of limited corporate liability. Also, the author emphasizes that the use of a formal approach, in which real violators of cartel prohibitions can refer to the limitations of their responsibility, while economically or administratively controlling the behavior of other economic entities within the group, is unacceptable in the conditions of the dominance of transnational and digital corporations.