On the necessity of antitrust immunities from the designation of an undertaking as holding a dominant position

Abstract

The article is devoted to the study of antitrust immunities, in which an economic entity is not designated as holding a dominant position in the commodity market. Based on the analysis of regulatory regulation, as well as doctrinal sources, the author proves that the market power of a market participant is not directly related to the amount of revenue of an economic entity. It is argued that when granting immunity to a single participant in the local commodity market if it meets a number of formal criteria stipulated by antitrust legislation, the fact that such an economic entity possesses market power (market force) is not actually taken into account. The article notes the existence of a scientific discussion regarding the existence of other immunities in antimonopoly legislation — from the imputation of abuse of a dominant position to actions to exercise exclusive rights to results of intellectual activity and means of individualization, and provides the position of the Constitutional Court of the Russian Federation on the application of these immunities, which, according to the author, can be applied by analogy and to immunities from the designation of undertaking as holding a dominant position. The author concludes that the application of the immunities discussed in the article may not actually meet the aims of antitrust regulation.