Features of antimonopoly regulation of foreign investments

Milchakova Olesya Vladimirovna PhD in Law Associate Professor; Department of Competition Law; O.E. Kutafin Moscow State Law University (MGUA) 9 Sadovaya Kudrinskaya str., Moscow, 123995, Russia millov@yandex.ru Other publications by this author

Introduction. Problem statement

In the Russian Federation, "investment activity is regulated by fragmentary provisions of various branches of legislation – civil, antimonopoly, legislation on investment activities, on foreign investments, industry legislation" ^{[18, p. 9]}.

The relevance of this study is predetermined by the current geopolitical situation and the attention of legislators, law enforcement officers, scientists and researchers to issues related to foreign participation in the Russian economy. At the same time, the aspects of attracting foreign investment in the context of the need to ensure the economic security of the state are more studied [2-4, 8-10, 12, 13, 17], while the issues of antimonopoly control of such investments are practically not investigated.

At the same time, it seems that in the light of the temporary economic measures currently in force to ensure the financial stability of the state, introduced by the President of the Russian Federation (Decrees No. 81 dated 03/01/2022, No. 618 dated 09/08/2022), antimonopoly regulation of foreign investments, which is an integral part of the legal norms ensuring the protection and development of competition as a constitutional one, is also of great importance values (Articles 8, 34 of the Constitution of the Russian Federation).

As S. A. Puzyrevsky correctly notes, "the state policy on the development of competition is one of the key directions and factors of economic growth. Competition is an integral part of the market economic system. It is competition that allows us to provide the foundation for stable economic development, technology development, as well as to ensure an increase in the competitiveness of Russian business entities, lower prices, and increase the welfare of the population" ^{[14, p. 13]}.

The basis of antimonopoly regulation of foreign investments is the provisions of Article 18 of Federal Law No. 160-FZ dated 07/09/1999 "On Foreign Investments in the Russian Federation" (hereinafter also referred to as the Law on Foreign Investments), according to which a foreign investor is obliged to comply with antimonopoly legislation and prevent unfair competition and restrictive business practices, including by creating on the territory of In Russia, a commercial organization with foreign investments or a branch of a foreign legal entity for the production of any goods in high demand, and then self-liquidation in order to promote a similar product of foreign origin to the market, as well as through a malicious agreement on prices or on the distribution of markets for goods or on participation in auctions (auctions, contests).

The legislation does not provide for any special liability for violation of these requirements, as well as procedural rules on the procedure for considering cases of such violations.

In turn, antimonopoly legislation is based on the Constitution of the Russian Federation, the Civil Code of the Russian Federation and consists of Federal Law No. 135-FZ dated 07/26/2006 "On Protection of Competition" (hereinafter also the Law on Protection of Competition), other federal laws regulating relations related to the protection of competition and in which Russian and foreign legal entities participate individuals, other organizations, federal executive authorities, state authorities of the subjects of the Russian Federation, local governments, other bodies or organizations performing the functions of these bodies, as well as state extra-budgetary funds, the Bank of Russia, individuals, including individual entrepreneurs.

The Law on the Protection of Competition establishes the organizational and legal basis for the protection of competition, including prohibitions and restrictions on monopolistic activities, unfair competition, agreements restricting competition and coordinated actions, as well as antitrust requirements for bidding, requesting quotations of prices for goods, requesting proposals, concluding contracts with financial organizations, granting state and municipal preferences.

Thus, the range of antitrust prohibitions and restrictions established by the Law on Protection of Competition differs from the range of acts prohibited by Article 18 of the Law on Foreign Investments.

The objective of this study is to identify the similarities and differences of antimonopoly regulation of relations involving foreign persons, compared with similar regulation applied to Russian persons.

Antimonopoly control of economic concentration

The state control of economic concentration is an independent tool for protecting competition, which has significant specifics of regulatory legal regulation ^{[5, p. 29]}.

The main purpose of antimonopoly control of mergers and acquisitions is to prevent monopolization of the market, which, in addition to positive effects in the form of consolidation of production, cost reduction and cost of final products, can have negative consequences. In particular, as a result of "a reduction in the number of competing economic entities, which creates an opportunity for abuse of market power by newly emerged monopolists" ^{[7, p. 656]}.

Not all transactions planned to be performed by market participants are subject to such control, but only those that are recognized by the Law on Protection of Competition (paragraph 21 of Article 4) as economic concentration, which means transactions and other actions, the implementation of which has an impact on the state of competition. In this case, the object of economic concentration is a person whose shares (shares), assets, fixed assets and (or) intangible assets are acquired or contributed to the authorized capital, and (or) a person whose rights are acquired (paragraph 22 of Article 4 of the said law). In this regard, it is not possible to agree with M. A. Egorova's statement that the Russian antimonopoly legislation does not provide for the concept of "economic concentration" ^{[7, p. 656]}.

According to D. S. Seregin, the normative definition of economic concentration is excessively broad ^{[16, p. 29]}. At the same time, the Law on Protection of Competition simultaneously provides for clear criteria, according to which the transaction is subject to mandatory preliminary assessment by the antimonopoly authority for the presence or absence of risks of threats to competition in the market.

Such criteria are quantitative, characterizing the financial position of the participants in the transaction – the acquirer and the object of economic concentration, their groups of persons (exceeding the total value of assets in the amount of 7 billion rubles. or total revenue – 10 billion rubles, and excess of the total asset value of the object of economic concentration, its group of persons in the amount of 800 million rubles), or the transaction price (7 billion rubles), as well as a qualitative characteristic of the subject of the planned transaction (for example: voting shares of a business company, if the acquirer (his group of persons) in as a result of the transaction, he will receive the right to dispose of more than 25%, 50% or 75% of such shares; the main production assets of an economic entity, the book value of which exceeds 20% of the book value of its main production assets and intangible assets).

Taking into account the extraterritorial nature of the operation of the Law on Protection of Competition (Part 2 of Article 3), transactions and other actions planned to be performed outside Russia and (or) by foreign persons are subject to preliminary approval if corporate rights in relation to Russian commercial and non-profit organizations and their assets are acquired as a result of their commission. Thus, the general criteria of controlled transactions established by the Law on Protection of Competition (Articles 27-29) are applied primarily to transactions of foreign persons.

In addition, transactions and other actions of entities that meet the general quantitative criteria specified above (on the value of assets or revenue), transactions with a price exceeding RUB 7 billion, if the subject of such transactions or other actions is the acquisition of more than 50% of voting shares (shares) of a legal entity established outside the Russian Federation, are also subject to audit by the antimonopoly authority. on the territory of Russia, or other rights that allow determining the conditions for such a person to carry out entrepreneurial activities or perform the functions of its executive body, if such a legal entity supplies goods to the territory of Russia in the amount of more than 1 billion rubles during the year preceding the date of the transaction, other action (art. 26, paragraph 9, Part 1 Article 28 of the Law on Protection of Competition).

Thus, the Russian antimonopoly legislation, considering as a potential threat to competition the acquisition of assets of foreign organizations importing goods to the territory of Russia in the specified volume, thereby recognizes that such organizations can have a significant impact on the economy of the state. It should be noted that this threshold criterion for approving transactions for the acquisition of assets of foreign persons (supplies of goods by an object of economic concentration in the amount of more than 1 billion rubles) was introduced in 2011. (Federal Law No. 401-FZ dated 06.12.2011) and has never been revised, while the general criterion for the financial position of an object of economic concentration – a Russian organization (its group of persons), transactions, other actions in respect of which are subject to approval by the antimonopoly authority, introduced in 2006, was increased repeatedly: in 2009. – from 150 million rubles to 250 million rubles, in 2016 – from 250 million rubles to 400 million rubles, in 2022 – from 400 million rubles to 800 million rubles.

Considering that the currently established income limits for small enterprises in Russia amount to 800 million rubles, medium–sized enterprises - 2 billion rubles (Decree of the Government of the Russian Federation dated 04.04.2016 No. 265), the change in the exchange rate of foreign currencies from 2011 to 2024, it is obvious that the criteria for foreign organizations whose acquisition of assets has risks require revision the threat of monopolization of the market.

Another feature is the exclusion established by Part 2 of Article 28 of the Law on Protection of Competition from the general permissive procedure for transactions, transactions entailing the establishment of the beneficial owner's control over a foreign legal entity registered in Russia in accordance with Article 5 of Federal Law No. 290-FZ dated 08/03/2018 "On International Relations", which was lost after 03/17/2014. companies and international funds"), provided that information about this beneficial owner is provided during such state registration, and these transactions are carried out within 10 years from the date of this registration and entail the establishment of control by the beneficial owner over this foreign legal entity to the same extent that existed before its loss.

Russian Russian beneficiaries appear to be protected from the sanctions pressure of unfriendly states (as a result of which they were forced to reduce their share of participation in foreign companies), as well as the development of special administrative regions (the so-called "Russian offshore" on Oktyabrsky Island in the Kaliningrad Region and Russky Island in the Russian Federation), it seems that the goals of these exceptions, introduced in 2022, are to protect Russian beneficiaries from the sanctions pressure of unfriendly states (as a result of which they were forced to reduce their share of participation in foreign companies). Primorsky Krai) by simplifying the procedure for the redomicilation of foreign companies in Russia, which at the same time entails the obligation of additional investment in the Russian economy.

Transactions of Russian residents with respect to Russian business entities made with foreign persons associated with unfriendly states, in accordance with the decrees of the President of the Russian Federation on temporary economic measures to ensure the financial stability of the state, are currently subject to preliminary approval by the subcommittee of the Government Commission for the Control of Foreign Investments in the Russian Federation (hereinafter – the Government Commission) (see: Decree of the Government of the Russian Federation No. 254 dated 03/06/2022). Obtaining such approval can be carried out in parallel with the passage of the transaction approval procedure with the antimonopoly authority.

At the same time, as D. A. Gavrilov notes, for the sub-commission, "among other things, the valuation of the transaction is very significant," however, in the process of obtaining the consent of the sub-commission, "there is also a somewhat similar parameter of the regulatory assessment of the transaction", which is taken into account during the antimonopoly audit, since a justification is provided within the framework of the application for obtaining consent to the transaction"the need to make a decision and indicate the negative consequences in case of refusal of a permit for the applicant and the socio-economic development of the Russian Federation" ^{[6, p. 40]}.

The peculiarity of antimonopoly control of transactions of foreign investors in relation to enterprises operating in strategic sectors of the economy is the impossibility of its completion (paragraphs 3.1-3.4 of Part 2 of Article 33 of the Law on Protection of Competition) before the date of the decision on the transaction by the Government Commission in accordance with the requirements of Federal Law No. 57-FZ dated 04/29/2008 "On the procedure for Implementation foreign investments in business entities of strategic importance for ensuring the country's defense and state security" and (or) Article 6 of the Law on Foreign Investment, or the Federal Antimonopoly Service within the framework of the competence to control the implementation of foreign investments.

The government commission evaluates the transaction of a foreign investor for the presence or absence of risks of threats to the country's defense and state security, including national economic security. A transaction can be agreed upon, among other things, with the imposition of obligations on a foreign investor, a number of which are similar to the tasks of antimonopoly control and have a direct effect on maintaining and improving the competitive environment. For example: processing on the territory of Russia of minerals extracted by the acquired company, aquatic biological resources extracted (caught) by such a company; continuation of the strategic type of activity by the acquired company; ensuring that this company maintains production volumes and supplies of products (works, services) at a level not lower than the previous date of the transaction; introduction of innovative technologies at facilities industrial production located on the territory of the Russian Federation (see: Article 12 of Federal Law No. 57-FZ of 04/29/2008).

The decision of the Government Commission to refuse to approve a transaction for the acquisition of assets of an enterprise operating in strategic sectors of the economy entails an unconditional refusal by the antimonopoly authority to approve this transaction within the framework of the Law on Protection of Competition (paragraphs 6, 7, part 2 of Article 33). This approach of the legislator may be explained by the priority of constitutional values protected by federal laws on foreign investment in strategic sectors of the economy.

In addition, it seems that the security of competition as a state of the commodity market is an integral part of the economic security of the state, since, among other things, the support, development and protection of competition in the Russian market, the suppression of monopolistic activities and anti-competitive agreements are the objectives of the National Security Strategy of the Russian Federation (sub-item 31, paragraph 67), approved by decree of the President of the Russian Federation dated 07/02/2021 No. 400.

It is also necessary to take into account that the Government Commission is headed by the Chairman of the Government of the Russian Federation, it includes the majority of members of the Government of the Russian Federation, heads of other authorities, and the executive secretary of the commission is the head of the FAS of Russia, whose activities, in turn, are managed by the Government of the Russian Federation, and which provides information and analytical support for the activities of the specified commission.

Prohibition of restrictive business practices

The above-mentioned norm of Article 18 of the Law on Foreign Investments for Foreign investors establishes, among other things, the requirement not to allow restrictive business practices.

There is no definition of the term "restrictive business practice" in Russian legislation (however, as well as "business practice"). This term is mentioned in Federal Law No. 165-FZ dated 08.12.2003 "On Special Protective, Anti-dumping and Countervailing Measures for the import of goods" in connection with the application of protective, anti-dumping and countervailing measures for the import of goods in the case of restrictive business practices in the form of collusion with respect to the export price of goods (Part 5 of Article 12), and also in a similar context – in the Treaty on the Eurasian Economic Union (signed in Astana on 05/29/2014).

This concept may imply the obligation of market participants to conduct good business practices. Thus, the Civil Code of the Russian Federation, establishing the principles and procedure for the emergence, implementation, modification, termination and protection of civil rights and obligations, often uses the term "good faith", including fixing the obligation of participants in civil turnover to act in good faith (art. 1, 6, 10, 53, 234, 602 etc.). "Legislatively the concept of "good faith in actions" is relatively definite, which is opposed to unfair actions and abuse of law, based on the principles of reasonableness, compliance with the prohibition to exceed the limits of the exercise of civil rights established in the norms of law, mutual respect for rights and legitimate interests (balance of interests), honest and diligent performance of their duties and obligations, including, to assist others in achieving the objectives of the obligation and to provide the necessary information" ^{[11, p. 251]}.

At the same time, it is necessary to take into account the provisions of Article 10 of the Civil Code of the Russian Federation, which establishes a ban on the use of civil rights in order to limit competition and abuse of a dominant position in the market, and the norms of which may narrow the concept of good faith for the purposes of applying the ban in question for a foreign investor, established by Article 18 of the Law on Foreign Investments.

At the international level, the concept of restrictive business practices is revealed in the Recommendation Act, a Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, adopted in 1980 at the United Nations Conference on Restrictive Business Practices and approved in the same year by a resolution of the UN General Assembly.

According to this document, the term "restrictive business practices" means the actions or behavior of enterprises that, by abusing or acquiring a dominant market position and abusing it, restrict market access or otherwise unduly restrain competition, which has or may have a negative impact on international trade, especially on trade of developing countries and on economic development these countries, or which, through formal, informal, written or oral agreements or arrangements between enterprises, have a similar impact. Thus, the concept of "restrictive business practices" used in United Nations documents broadly corresponds to the concept of "monopolistic activity" specified in Russian antimonopoly legislation, while having certain differences.

"Dominant market position" means a situation in which an enterprise, either independently or acting jointly with several enterprises, has the ability to control the relevant market for a certain product or service, or a group of goods or services.

On the other hand, Article 18 of the Law on Foreign Investments, fixing the ban on restrictive business practices of a foreign investor, explicitly states that, among other things, it is not allowed to create a commercial organization with foreign investments or a branch of a foreign legal entity on the territory of Russia to produce any goods in high demand, and then self-liquidation in order to promote the market for a similar product of foreign origin. This prohibition is not related to the presence of a foreign investor, his group of persons, an organization created by a foreign investor or a branch of a dominant position in the commodity market operating in Russia, as well as causing losses to competitors by such actions.

At the same time, the similar prohibitions established by paragraphs 2, 4, part 1 of Article 10 of the Law on Protection of Competition (on the withdrawal of goods from circulation, if the result of such withdrawal was an increase in the price of goods; on economically or technologically unjustified reduction or cessation of production of goods, if there is demand for this product or orders for its supply are placed, if available the possibilities of its profitable production) apply only to economic entities (a group of persons) occupying a dominant position in the commodity market. The dominant position is recognized as the position of an economic entity (group of persons) or several economic entities (groups of persons) in the market of a certain product, giving such an economic entity (group of persons) or such economic entities (groups of persons) the opportunity to exert a decisive influence on the general conditions of circulation of goods in the relevant commodity market, and (or) eliminate from this the commodity market of other economic entities, and (or) impede access to this commodity market for other economic entities. The qualitative and quantitative criteria that make it possible to qualify the position of an economic entity (group of persons) in the commodity market as a dominant position are established by Article 5 of the Law on Protection of Competition.

Since, by virtue of the provisions of Part 1 of Article 3 of the Law on Protection of Competition, Article 18 of the Law on Foreign Investments is an integral part of the antimonopoly legislation, as well as the fact that the norms of this article in this part have direct effect, it is permissible to assert that the above-mentioned additional prohibitions on competition-limiting behavior on the territory of Russia are established for foreign investors in Russia. in the market, compared to Russian investors. In this case, the case of the relevant offense may be considered by the antimonopoly authority in accordance with the general rules and procedures for considering cases of violation of antimonopoly legislation.

Taking into account the above, it seems that restrictive business practices for the purposes of the Law on Foreign Investment should be understood not only such behavior (actions, inaction) a foreign investor in civil turnover, which is directly prohibited by the provisions of the Law on Protection of Competition, but also other acts that do not comply with the principles of fair business practice, which have led and (or) may lead to the prevention, restriction, elimination of competition.

Prohibition of unfair competition

First of all, foreign investors are subject to general and special prohibitions on unfair competition established by Chapter 2.1 of the Law on Protection of Competition (prohibitions on discrediting, misleading, incorrect comparison, creating confusion, etc.).

Special rules include exceptions from the national principle of exhaustion of law established by Article 1487 of the Civil Code of the Russian Federation in relation to intellectual property rights (including the exclusive right to a trademark, service mark), which presupposes "the exhaustion of the exclusive rights of the rightholder only if a copy (product) is introduced into circulation within the country. Despite the repeated sale of a legally introduced copy (product) abroad, the consent of the copyright holder is required for its import into the country with the current national principle of exhaustion of rights" ^{[15, p. 57]}.

Based on the legal position of the Constitutional Court of the Russian Federation, since the constitutional requirement to act in good faith and not abuse their rights is equally addressed to all participants in civil relations, insofar as "the actions of the rightholder who unfairly uses ... the mechanism of national (regional) exhaustion of the exclusive right to a trademark, in particular restricting the import into the domestic market of the Russian Federation of specific goods or selling a pricing policy consisting in inflating prices on the Russian market in comparison with other markets to a greater extent than is typical for ordinary economic activity and to satisfy the reasonable economic interest of the rightholder cannot be regarded as approved from the point of view of protecting constitutionally significant values if such actions lead to restrictions on access of Russian consumers to the relevant goods, first of all, those whose availability on the domestic market is a vital necessity (for example, certain categories of medicines, equipment for life support of the population, etc.)" (see: resolution of the Constitutional Court of the Russian Federation No. 8-P of 02/13/2018).

Thus, the ban on parallel imports can be considered as a manifestation of unfair competition on the part of foreign manufacturers of goods (works, services), since such actions of the copyright holder, although corresponding to Article 1487 of the Civil Code of the Russian Federation, "in the opinion of antimonopoly authorities and courts contradict business practices, requirements of integrity and fairness" ^{[1, p. 20]}.

Additionally, it should be noted that as part of the counter-sanction protection of the Russian economy, in accordance with paragraph 13 of Part 1 of Article 18 of Federal Law No. 46-FZ dated 03/08/2022, Decree of the Government of the Russian Federation No. 506 dated 03/29/2022 on a temporary basis (2022-2024) allowed the import into Russia without the consent of the copyright holders of certain types of original foreign goods that are put into circulation abroad. Consequently, with regard to the exclusive rights to these goods, the principle of international exhaustion of rights has been extended, that is, they are recognized as exhausted regardless of the territory in which the first introduction of the goods into circulation was carried out.

Another feature of the application of prohibitions on unfair competition to foreign investors should be called the direct effect of Article 18 of the Law on Foreign Investments, which entails the possibility of protecting violated rights in court with reference to the norms of this article without assessing the presence or absence of a violation of the Law on Protection of Competition by the antimonopoly authority and (or) the court.

So, for example, in case No. A50-7237/2016 (on the claim of the copyright holder of a trademark with international protection against several Russian companies that, as the plaintiff pointed out, sold their products on which such a trademark was applied), the courts agreed with the conclusions about the plaintiff's abuse of his right to judicial protection, given that that the plaintiff and the defendants are competing business entities, the amount of compensation claimed by the plaintiff significantly exceeds the amount of the defendants' assets. Such actions are aimed at causing harm, may lead to the termination of the defendants' activities and are a manifestation of unfair competition. "Considering that the illegal use of the plaintiff's trademarks by the defendants has not been proven, and abuse of the right is an independent basis for denying the claim, the claims ... were correctly rejected by the court ..., the claim was lawfully denied." At the same time, in the acts on this case, the courts referred to the provisions of Article 18 of the Law on Foreign Investment, and not to the violation of prohibitions provided for by the Law on Protection of Competition.

Prohibition of restrictive agreements and concerted actions

Attention should be paid to the wording provided for in Article 18 of the Law on Foreign Investments, which is atypical for modern Russian legislation, prohibiting malicious agreements by a foreign investor on prices or on the distribution of markets for goods or on participation in auctions (auctions, contests).

There is no concept of malicious agreement in Russian legislation, while such a category of invalid transactions as transactions made under the influence of a malicious agreement between a representative of one party and another party was excluded from Article 179 of the Civil Code of the Russian Federation in 2013. Federal Law No. 100-FZ of 07.05.2013.

It seems that a malicious agreement implies the existence of an intent by a foreign investor to conclude an agreement, the purpose of which is to cause the above adverse consequences for the market.

These acts are part of anti-competitive agreements prohibited by the Law on Protection of Competition. The subjective side of an antitrust offense can be expressed not only in the form of intent, but also in the form of negligence, and, accordingly, in such a violation committed by a foreign investor, the qualification of his act as an offense cannot be excluded only because such an investor does not have intent (malicious intent) to cause negative consequences.

Another feature is that, unlike the norms of the Law on Protection of Competition, the prohibition under consideration in Article 18 of the Law on Foreign Investment does not contain any exceptions to its scope, including the conditions of admissibility. At the same time, the Law on the Protection of Competition (Part 7 of Article 11, Part 2 of Article 12) provides for bans on certain types of anti–competitive agreements only if their participants have a certain share in the commodity market (20% - for "vertical" agreements, or exceptions from the prohibitions on such agreements for cartel participants included in the one group of persons, if one of such participants has established control over the other.

Antitrust requirements for bidding

Paragraph 2 of Part 1 of Article 17 of the Law on Protection of Competition, among antitrust prohibitions, provides for the inadmissibility of creating preferential conditions for participation in tenders, request for quotations, request for proposals, or several participants in such procedures, including through access to information, unless otherwise established by federal law.

With regard to foreign market participants and foreign-made goods, the sectoral legislation regulating the procedure for procurement of goods, works, and services for state and municipal needs, for the needs of the state defense order, establishes restrictions on foreign participation in such procedures.

For example, an offshore company cannot be a participant in the purchase – a legal entity registered in a state or territory included in the list of states and territories used for intermediate (offshore) ownership of assets in the Russian Federation (clause 4, Part 1, Article 3 of Federal Law No. 44-FZ dated 04/05/2013 "On the Contract System in the field of Procurement goods, works, and services to meet state and municipal needs").

On the basis of Part 3 of Article 14 of the said law, Decree of the Government of the Russian Federation No. 616 dated 30.04.2020 established a ban on the admission of industrial goods originating from foreign countries for the purposes of procurement for state and municipal needs, as well as industrial goods originating from foreign countries, works (services) performed (rendered) by foreign persons, for for the purposes of procurement for the needs of national defense and State security.

Thus, the legislation establishes preferential conditions for participation in the procurement under consideration for Russian legal entities, Russian-made goods, works, services, respectively, performed and provided by Russian organizations and individuals.

Therefore, it seems legitimate to assert that there are exceptions to the general regime of protection against violations of antimonopoly legislation in this area of economic relations for foreign market participants and foreign-made products. It is obvious that the introduction of such exemptions is dictated by the goals of ensuring national, including economic security and is based on the provisions of Part 3 of Article 55 of the Constitution of the Russian Federation.

Actions (inaction) restricting competition in the cross-border commodity market

As already noted, the provisions of the Law on the Protection of Competition have an extraterritorial effect, but its norms do not apply to relations regulated by uniform rules of competition in cross-border markets, the control of compliance with which falls within the competence of the Eurasian Economic Commission in accordance with the international Treaty on the Eurasian Economic Union (Part 3 of Article 3 of the law).

The criteria for classifying the market as a cross-border one, in accordance with paragraph 2 of Article 74 of the said international agreement, were approved by Decision No. 29 of the Supreme Eurasian Economic Council dated 12/19/2012.

The suppression of violations by business entities of prohibitions on unfair competition is carried out by the Eurasian Economic Commission if the business entity whose actions violate the established prohibition and the business entity – competitor (competitors) to whom damage has been caused or may be caused or may be caused to business reputation as a result of such actions are registered in the territories different Member States.

The suppression of violations by business entities of prohibitions on anti-competitive agreements provided for in paragraphs 3-5 of Article 76 of the said international treaty is carried out by the Eurasian Economic Commission if at least two business entities whose actions lead or may lead to a violation of the ban are registered in the territories of different member States.

The suppression of violations by business entities of prohibitions on abuse of a dominant position in the commodity market is carried out by the Eurasian Economic Commission if the following conditions are met in aggregate:

– the share of the volume of sales or purchases of an economic entity that occupies a dominant position in the cross-border commodity market and whose actions lead to a violation of the established prohibition, of the total volume of goods circulating in the territory of each of the member States affected by the violation, is at least 35%;

– violation of the ban leads or may lead to the prevention, restriction, elimination of competition in the cross-border commodity market or infringement of the interests of other persons in the territories of two or more Member States

or

– the cumulative share of the volume of sales or purchases of several economic entities, each of which occupies a dominant position in the cross-border commodity market and whose actions lead to a violation of the established prohibition, of the volume of goods circulating in the territory of each of the Member States affected by the violation, is for no more than three economic entities at least 50% or not for more than four economic entities – at least 70% (this provision does not apply if the share of at least one of these economic entities is less than 15% in the territory of each of the member States);

– for a long period (for at least 1 year or, if such a period is less than 1 year, during the lifetime of the relevant commodity market), the relative size of the shares of economic entities is unchanged or subject to minor changes, as well as access to the relevant commodity market of new competitors is difficult;

– goods sold or purchased by business entities cannot be replaced by another product during consumption (including consumption for production purposes), an increase in the price of goods does not cause a corresponding decrease in demand for this product, information about the price, conditions of sale or purchase of this product in the relevant commodity market is available to an indefinite circle of people;

– violation of the ban leads or may lead to the prevention, restriction, elimination of competition in the cross-border commodity market or infringement of the interests of other persons in the territories of two or more Member States.

Thus, violations of antimonopoly legislation in cross–border commodity markets committed by foreign investors registered in the territory of the States parties to the Treaty on the Eurasian Economic Union are subject to consideration by the Eurasian Economic Commission in accordance with the rules established by the said treaty and acts adopted to implement this treaty.

Conclusions

The results of the conducted research allow us to come to conclusions about the presence of the following features of antimonopoly regulation of foreign investments in the Russian Federation:

1. The norms of antimonopoly legislation have an extraterritorial effect, since they apply to transactions reached outside the territory of Russia, other agreements and actions of foreign persons if they affect the state of competition in Russia.

2. Article 18 of Federal Law No. 160-FZ dated 07/09/1999 "On Foreign Investments in the Russian Federation" is a direct rule. It is permissible to file a lawsuit with a reference to a violation of this article, without first contacting the antimonopoly authority and evaluating the actions (inaction) of a foreign investor for the presence or absence of facts of violation of Federal Law No. 135-FZ dated 07/26/2006 "On Protection of Competition".

3. Taking into account the need to ensure national economic security for foreign investors, a broader list of antimonopoly prohibitions on unfair actions (inaction), stricter rules for controlling economic concentration (except in cases of restoring control over a business entity when a foreign company is redomiciled in Russia), exemptions from the general regime of protection against violations of antimonopoly legislation during the conduct of bidding (request for quotations, request for proposals), in comparison with persons registered in the Russian jurisdiction, goods, works, services of Russian origin, as well as special rules for the consideration of cases of violations of competition in the cross-border commodity market.

Conclusion

In conclusion, it should be noted that the specifics of antimonopoly regulation of foreign investments are justified by the goals of ensuring national, including economic security and are based on the provisions of Part 3 of Article 55 of the Constitution of the Russian Federation.

At the same time, in order to ensure legal certainty and a positive investment climate, it is necessary to amend Article 18 of Federal Law No. 160-FZ dated 07/09/1999 "On Foreign Investments in the Russian Federation", ensuring correlation of its provisions with the norms of Federal Law No. 135-FZ dated 07/26/2006 "On Protection of Competition", regulation of the procedure for consideration by the antimonopoly Committee the body of cases of relevant violations, bringing the provisions of the law in line with the current legal norms of Russian legislation. They also require a revision of the provisions of the antimonopoly legislation on the control of the economic concentration of transactions involving the acquisition of assets of foreign organizations importing goods into Russia.