Criminal law policy in the field of fair competition protection and competition policy: correlation and problems of interdependence

Danilovskaia Anna PhD in Law Associate professor, Department of Civil Law and Civil Procedural Law, Khabarovsk State University of Economics and Law 680000, Russia, Khabarovskii krai, g. Khabarovsk, ul. Tikhookeanskaya, 134, of. 417 d_a_v@list.ru Other publications by this author

The dangerous economic trends noted in economic policy that affect fair competition, as one of the elements of the national security of the country, require the involvement of those state institutions that are able to prevent or suppress their harmful effects, and, if impossible, to apply harsh repressive measures to violators, including criminal law. In this regard, the protection of competition should be recognized as a rather laborious process, the effectiveness of which depends both on the compliance of the norms of criminal and competition legislation with the requirements of economic security, and on the activities and interaction with each other of authorized authorities, in particular, antimonopoly and law enforcement.

Encroachments on fair competition by antimonopoly authorities began to be recorded with the transition of the country to a market economy. At the same time, the formation of a criminal law policy in the field of fair competition protection began. Thus, the history of parallel development of antimonopoly (competitive) and criminal law policy in the designated area has more than 30 years, during which attempts were made to find criteria for the effectiveness of mutual counteraction to the most dangerous encroachments on competition.

The analysis of statistical data on violations of competition law demonstrates the effectiveness of such attempts and allows us to draw conclusions about their effectiveness.

Among the main threats to competition, since 2007, the Federal Antimonopoly Service names abuse of a dominant position, cartels and anticompetitive actions of authorities, which were very common violations and caused reasonable alarm. At the same time, the research conducted by the author ^{[1, pp. 101-103]} indicates that the public danger of unfair competition, which is not included in the list of the most dangerous anticompetitive acts, may be no less than the danger of cartels. In general, the number of violations detected by antimonopoly authorities is the following statistical data:

Table 1 – Statistics of violations of the Federal Law "On Protection of Competition" [FAS reports on the state of competition in the Russian Federation (2007-2022) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (accessed 19.06.2023)]

The most difficult situation, which has persisted for a long time, exists with the task of uncovering cartels. Special attention of antimonopoly authorities is attracted by auctions, in the sphere of which a significant number of violations have been identified and are being revealed, including anti-competitive agreements in the form of collusions of economic entities among themselves and (or) with the organizer (customer) of the auction. It was the prevalence of collusion at auctions that led in 2017 to the recognition of cartels as one of the threats to the economic security of the country [Decree of the President of the Russian Federation dated 13.06.2017 No. 208 "On the Strategy of Economic Security of the Russian Federation for the period up to 2030". Access mode: http://www.kremlin.ru/acts/bank/41921 (accessed 15.08.2023)]. Thus, in 2022, the antimonopoly authorities initiated 301 cases on agreements restricting competition, of which 109 cases on collusion at auction; in 2021 – 420 cases on agreements restricting competition, of which 187 – on collusion at auction; in 2020 – 625 cases on cartels, of which 247 – on collusion in 2019 – 424 cases of cartels, of which 320 – of collusion at auction; in 2018 – 384 cases of cartels, of which 332 – of collusion at auction; in 2017 – 423 cases of cartels, of which 310 – of collusion at auction; in 2016 – 300 cases, of which 298 are about collusion at auctions [FAS Reports on the state of competition in the Russian Federation (2016-2022). Access from the official website of the FAS RF // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (accessed 19.06.2023)]. However, the situation that arises from the ratio of cartels identified by antimonopoly authorities, including those with signs of a crime, and the number of convicts under Article 178 of the Criminal Code of the Russian Federation "Restriction of Competition", which provides for criminal liability for the cartel, is paradoxical. Based on the results of consideration of the facts of anti–competitive agreements with signs of crimes, law enforcement agencies initiated 12 criminal cases in 2022 under Article 178 of the Criminal Code of the Russian Federation, in 2021 – 17, in 2020 – 21, in 2019 – 22, in 2018 – 15, in 2016 - 3 [FAS reports on the state of competition in the Russian Federation (2016-2022)], but only a few were sent to court (Table 2). The main problems of this situation lie in the imperfection of the criminal law norm, which has a blank character, as well as procedural and organizational aspects of the detection and investigation of this crime, which require the attention of the legislator.

Table 2 – Number of convicts under Article 178 of the Criminal Code of the Russian Federation

[Judicial statistics data. Access from the official website of the Supreme Court of the Russian Federation // URL: http://www.cdep.ru/index.php?id=79 (accessed 24.05.2023)]

A significant share in the structure of the revealed violations has long been occupied and continues to be occupied by violations on the part of state bodies and local self-government bodies, which, having authority, are able to have the most negative impact on the sphere of entrepreneurial activity in general and on competition in particular.

The American economist R. Posner drew attention to this feature of the anticompetitive activity of the authorities ^{[2, p. 106]}, who noted, in particular, that regulation leading to the creation of barriers causes more damage to society than private monopolies as such ^{[3, p. 94]}. In this regard, Russian economists consider it necessary to implement anti-corruption policy as part of competition policy. At the same time, it should be noted their observation that in the context under consideration, corrupt behavior affects not so much the public administration system as the competitive sphere of the economy, and therefore attention should be paid to all areas of state influence on markets, especially public procurement and the provision of state and municipal assistance ^{[3, pp. 94-95]}. This judgment seems to be very valuable in order to substantiate the need for independent criminalization of acts of anticompetitive activity of government officials at different levels, expressed in the conclusion of illegal agreements with business entities, and the placement of relevant criminal law norms in Chapter 22 of the Criminal Code of the Russian Federation according to the object of encroachment.

At the same time, the number of convicted officials under Articles 169, 285 and 286 of the Criminal Code of the Russian Federation, in whose actions signs of violations of antimonopoly legislation were revealed within the framework of the study conducted by the author, is relatively small (Table 3), which most likely indicates procedural problems in identifying and qualifying such crimes, the signs of which are recorded, as a rule, when monitoring compliance with the antimonopoly legislation by these persons.

Table 3 – Number of persons convicted of official anticompetitive crimes and sentences containing signs of violation of antimonopoly legislation

Unfair competition, as a type of violation of the Federal Law "On Protection of Competition", has a special situation. Thus, if in cases with criminally punishable cartels and anticompetitive behavior of government officials, if there are signs of a crime, the antimonopoly authorities transmit materials to law enforcement agencies, then as such, the facts of unfair competition remain in the field of attention only of the antimonopoly authorities.

Among the acts forming unfair competition detected by antimonopoly authorities, the following distribution of its forms is recorded [FAS Reports on the state of competition in the Russian Federation (2016-2022) // URL: https://fas.gov.ru/documents/type_of_documents/documenty_doklady (accessed 19.06.2023). Until 2018, the FAS reports on the state of competition did not reflect forms of unfair competition] (Table 4).

Table 4 – Number of cases of unfair competition and its forms, for which antimonopoly authorities issued decisions on recognition of violations or warnings

Due to the fact that the Criminal Code of the Russian Federation does not contain a description of the independent composition of unfair competition, the number of convicts under articles of the Criminal Code of the Russian Federation containing signs that meet certain criteria of unfair competition (art. 128.1, 146, 147, 180, 183, 185.3, 185.6 The Criminal Code of the Russian Federation), can be established only with a detailed analysis of the sentences that took place (Table 5).

Table 5 – Number of persons convicted of crimes containing signs of unfair competition of the Criminal Code of the Russian Federation, and sentences in which such signs were established

Law enforcement and antimonopoly authorities do not interact at all or rarely interact on the detection of such crimes [within the framework of the study conducted by the author, no joint or individual legal acts of these agencies in the field of interaction in the fight against unfair competition have been established], their detection and investigation is under the full jurisdiction of law enforcement agencies.

Thus, statistical data indicate a large number of anti-competitive acts committed, but the statistics of law enforcement agencies do not fully reflect the implementation of the mechanism of criminal responsibility for their commission, except for data under Article 178 of the Criminal Code of the Russian Federation, although statistics on the application of this article of the Criminal Code also raises questions. In the course of studying the causes of this phenomenon, problems were identified, in particular, with the establishment of qualifying signs of the elements of crimes - the act itself in the form of restricting competition by entering into a cartel, the amount of major damage caused or large-scale income extracted, the subject of the crime under Article 178 of the Criminal Code of the Russian Federation, the lack of proper interaction of antimonopoly and law enforcement agencies when identification of facts of anticompetitive acts containing signs of crimes, including official ones (Articles 169, 285 and 286 of the Criminal Code of the Russian Federation), and their investigation, as well as reflecting gaps in both antimonopoly and criminal and criminal procedure legislation. Thus, the absence of a legislative framework for the interaction of antimonopoly and law enforcement agencies complicates the entire process of countering anti-competitive violations. This manifests itself, for example, in the inability of antimonopoly authorities to promptly receive the results of operational investigative activities from law enforcement agencies, which entails the untimely identification of signs of a crime, including the act itself, the identification of persons guilty of committing a crime, the difficulty of determining the amount of damage or income, as well as in initiating a criminal case without the conclusion of the antimonopoly authority, which fixes the fact of violation of the law. In particular, only the antimonopoly authority can determine whether there is a cartel, as an agreement restricting competition, entailing consequences provided for by a special law, as well as whether there is a violation of antimonopoly legislation in the actions of an official of the authority. The presence in the practice of antimonopoly and law enforcement agencies of non-normative acts fixing the mechanism of their interaction [Order of the FAS of Russia dated 08.08.2019 No. 1073/19 "On Approval of Methodological Recommendations (together with Methodological Recommendations on the organization of interaction of the FAS of Russia with interested Law Enforcement agencies for the identification, disclosure and investigation of crimes related to the restriction of competition (Article 178 of the Criminal Code of the Russian Federation Russian Federation)), Cooperation Agreement of the Investigative Committee of Russia and the FAS of Russia dated October 3, 2012 No. 208-796-12/09-45, Order of the FAS of Russia and the Ministry of Internal Affairs of Russia dated June 11, 2013 No. 397/13/426 "On the Interdepartmental Working Group of the FAS of Russia and the Ministry of Internal Affairs of Russia", Order of the Investigative Committee of Russia and the FAS of Russia dated January 22, 2014. No. 4/16/14 "On the establishment of an interdepartmental working group"], are not able to give the necessary discipline to this process and have generated its instability, which affects the overall effectiveness of countering encroachments on fair competition.

Meanwhile, the provisions of the antimonopoly legislation perform an important preventive and suppressive function in relation to anti-competitive violations in general and crimes encroaching on fair competition in particular.

Thus, in order to expand the preventive capabilities of antimonopoly legislation in 2011, the Federal Law "On Protection of Competition" was supplemented with a number of new provisions provided for in Article 25.7 "Warning about the inadmissibility of violation of Antimonopoly legislation" and Article 39.1 "Warning about the termination of actions (inaction) that contain signs of violation of antimonopoly legislation". Article 35 "State control over agreements restricting competition of economic entities" also has a preventive value.

In the first and third cases, we are talking about preventive actions of the antimonopoly authority in the absence of a violation. According to Article 25.7, a warning is sent to an official of an economic entity who has publicly declared planned behavior in the market that may lead to a violation, or to an official of a government or management body, an organization involved in the provision of state or municipal services, a state extra-budgetary fund if there is information about actions (inaction) planned by these persons that can also lead to violations. The state control carried out in accordance with Article 35 aims to reveal the nature of the agreement of economic entities, preventing them from entering into a cartel: economic entities have the opportunity to apply to the antimonopoly authority with an application to inspect the draft of such an agreement.

The second case concerns the suppression measures of the antimonopoly authorities. They are implemented in relation to abuse of a dominant position, unfair competition and acts of authorities and management (part 2 of Article 39.1). The antimonopoly authority issues a warning to economic entities and authorities and management bodies either on the termination of anticompetitive actions (inaction), on the cancellation or amendment of acts containing signs of violation of antimonopoly legislation, or on the elimination of the causes and conditions that contributed to their commission, and on taking measures to eliminate the consequences of the violation, or on liquidation or taking measures to terminate implementation of the types of activities of a unitary enterprise that is established or operates in violation of the requirements of the law.

The suppression function is also carried out by such a tool for combating cartels as a program to mitigate penalties for voluntary information about cartels, the use of which in administrative proceedings has yielded positive results in the form of suppression and successful disclosure of dozens of cartels [FAS Reports on the state of competition in the Russian Federation (2016-2022)]. At the same time, the program of mitigating responsibility for cartels in criminal law, provided for in the note to Article 178 of the Criminal Code of the Russian Federation, has not yet been applied due to the imperfection of this institution, which deprives the state of the opportunity to counteract anti-competitive crime through this tool and in a certain sense negatively affects competition policy, because one of the elements of preventing encroachment on competition. The problem is the condition of exemption from liability established by the note when the guilty person compensates for the damage caused by the cartel, which is practically impossible. The solution to the issue could be a condition for compensation of such damage not only by the guilty individual, but also by a legal entity-a participant in the cartel, whose representative is the guilty person or in whose interests he acted.

 Meanwhile, it seems that the administrative and legal mitigation program provided for in Article 14.23 of the Code of Administrative Offences of the Russian Federation has an important preventive value in relation to the crime provided for in Article 178 of the Criminal Code of the Russian Federation, preventing the degeneration of an administrative offense into a more dangerous act.

In 2019, as a new tool for preventing violations of antimonopoly legislation in the Federal Law "On Protection of Competition", the institute of an internal system for ensuring compliance of an economic entity with the Requirements of antimonopoly legislation (Article 9.1) – "Antimonopoly Compliance" appeared [Federal Law No. 33-FZ of 01.03.2020 "On Amendments to the Federal Law "On Protection of Competition"" // Official Internet portal of legal information. URL: http://publication.pravo.gov.ru/Document/View/0001202003010005 ], which is a tool to help business entities comply with antimonopoly legislation and prevent its violation. For a legal entity, the rules on antimonopoly compliance are its internal policy of voluntary compliance with antimonopoly rules. In the case of the admission of a violation, responsibility, including criminal law, occurs on general grounds.

Thus, a number of measures implemented within the framework of competition policy have a preventive and preventive value, which has an impact on the processes of criminalization and decriminalization of acts, as well as the differentiation of responsibility, because their positive effectiveness allows the legislator to make more informed decisions regarding the criminal legal impact on the sphere of anticompetitive violations. For example, the introduction of preventive powers of the antimonopoly authority in relation to the abuse of a dominant position made it possible to more effectively control the activities of economic entities occupying a dominant position in the market, which also led to the decriminalization of this act, responsibility for which was established in Article 178 of the Criminal Code of the Russian Federation.

Meanwhile, in the field of support and protection of competition, the state is facing new challenges, one of which is the widespread development of technologies that change the competitive environment. All over the world, antimonopoly authorities reveal the practice of using computer algorithms by business entities not only for pricing, forecasting changes in the market, but also for the purpose of collusion without any real interaction between themselves. Antimonopoly authorities faced the problem of changing approaches to identifying and proving anti-competitive agreements concluded using Internet technologies.

The emergence of so-called "digital cartels" has also revealed criminal law issues of qualification of such collusions with both legitimate and illegal use of "digital robots" – computer programs that allow business entities not to take personal part in electronic bidding. In this regard, experts say that it is necessary to study issues related to digital risks of procurement activities in order to develop an optimal variant of criminal law response to such actions ^{[4, p. 124-131]}. In particular, questions require answers about the possibility of additional qualification of acts under Articles 273, 274 of the Criminal Code of the Russian Federation, as well as about the assessment of the actions of the developer of a malicious "digital robot" as an accomplice (accomplice) in committing a crime under Article 178 of the Criminal Code of the Russian Federation ^{[5, p. 150-151]}.

The right to intellectual property as an opportunity to acquire economic power is also becoming an increasingly relevant topic around the world, which forces countries to change their competition policy by extending national antitrust legislation to the sphere of intellectual activity. The FAS of Russia declared the inadmissibility of contrasting competition policy and intellectual property [Final Report to the expanded meeting of the Board of the FAS of Russia dated 26.09.2018 [Electronic resource]. Access from the official website of the FAS RF. URL: https://fas.gov.ru/documents/657268 (accessed: 5.08.2023)]. In this regard, the FAS has developed a bill [Draft Federal Law "On Amendments to the Federal Law "On Protection of Competition" and other Legislative Acts of the Russian Federation" [Electronic resource] // URL: https://regulation.gov.ru/projects#departments=41&StartDate=1 .2.2018&EndDate=15.1.2019&npa=79428 (accessed 5.08.2023)], according to which it is proposed to extend the prohibitions of monopolistic activity provided for in Articles 10 and 11 of the Federal Law "On Protection of Competition" to actions (inaction), including agreements with the use of exclusive rights to the results of intellectual activity. It is assumed that this will allow solving problematic issues related to the restriction or possible restriction of competition in the exercise by copyright holders of exclusive rights to the results of intellectual activity [it should be noted that the current version of the Federal Law "On Protection of Competition" contains a rule on the non-proliferation of the provisions of the law on the prohibition of abuse of dominant position on actions for the exercise of exclusive rights to the results of intellectual activity and equated to them means of individualization of a legal entity, means of individualization of products, works or services (paragraph 4 of Article 10 of the Law)].

At the same time, it should be noted that, most likely, taking into account the loyal attitude of the state to abuse of a dominant position, expressed in the priority of administrative control over the activities of persons occupying a dominant position, criminalization of such acts will not become an urgent issue, although hypothetically such a step in the future cannot be excluded, because the ability of anti-competitive agreements aimed at the restriction of competition by copyright holders in the sphere of the use of intellectual property objects, negatively affecting the economy, is confirmed by the already existing foreign experience ^[6].

It follows from the above that antimonopoly opposition in modern competition policy is a significant part of it. At the same time, the general concept of competition policy does not pay enough attention to the manifestations of unfair competition, which in general gives an incomplete picture of the system of protective measures, including criminal law, taken by the state to protect competition, since there is no criminal law prohibition of unfair competition in the law.

At the same time, it should be noted that the periodic change in the number of encroachments on fair competition reflected by statistics is primarily caused by changes in legislation. The reason for the continuing high indicators is seen in the lack of understanding of the importance of competition for the modern economy of the country, both among officials of all levels of government and local self-government, and among representatives of economic entities, in the problems of implementing competition policy in the subjects of the Russian Federation caused by weak performance discipline.

A survey conducted within the framework of the study of 144 employees of antimonopoly authorities and 310 law enforcement agencies of various subjects of the Russian Federation showed that representatives of these agencies assess the state's efforts to counter cartels, unfair competition and anticompetitive activities of authorities, mainly as unsatisfactory. Thus, 52.8% of the employees of the antimonopoly authorities surveyed consider measures against cartels insufficient (27.8% supported the actions of the state), 44.5% – in relation to unfair competition (39.8% spoke positively), 55.6% – in relation to the anticompetitive activities of the authorities (27.8% of respondents consider the measures taken sufficient). To the question "Do you think the measures, including anti-corruption measures, that the state applies to counteract violations of antimonopoly legislation by government and local self-government bodies are sufficient?" law enforcement officials responded as follows: positively – 37.3%, negatively – 62.7%; representatives of antimonopoly authorities gave the following answers: yes – 32.8%, no – 52.3%.

At the same time, it should be recognized that antimonopoly legislation is a young branch of legislation, whose institutions are on the path of their formation and development, and criminal law policy in the field of competition protection is dependent on both economic in general and competition policy in particular. Some issues are the underdevelopment of antimonopoly legislation institutions, which directly affects the possibilities of criminal law policy in the field of competition protection to achieve its goals of countering anti-competitive crimes.

Thus, one of the most important legislative achievements should be recognized as the appearance in the Federal Law "On Protection of Competition" of the official concept of "cartel" [Federal Law No. 401 of 06.12.2011 "On Amendments to the Federal Law "On Protection of Competition" and Certain Legislative Acts of the Russian Federation" // Official Internet Portal of Legal Information. URL: http://publication.pravo.gov.ru/Document/View/0001201112060011]. However, the confusion in one definition of the concepts of the classic cartel and collusion at auction does not seem to be the correct state of affairs due to the significant differences between these agreements ^{[7, pp. 119-131]}. The danger of collusion at auctions is the basis for the State to take more drastic measures to prevent them. In particular, it is advisable to differentiate criminal liability for these types of anticompetitive agreements, and given the increased risk of collusion at auctions, it is necessary to establish tougher penalties for their implementation. For preventive purposes, it seems necessary to introduce a ban on participation in auctions of economic entities that have already been brought to justice for participating in collusion at auctions. Such a measure exists in the legislation of individual countries (for example, Germany and France). The conditions of this ban could be: 1) the temporary nature of the ban, for example, for a year; 2) the application of the ban should be regardless of the type of the subject of responsibility. This mechanism could strengthen the preventive potential of antimonopoly legislation.

Another issue of the objectivity and integrity of the coverage of the relations regulated by the antimonopoly law concerns the general criteria for recognizing the actions of an economic entity as monopolistic activity. The question is relevant, since an open list of these actions gives rise to the discretion of the antimonopoly authority. To solve this issue in science, it is proposed to differentiate the actions of subjects depending on the presence or absence of consequences in the form of harm [Kameneva P. V. Legal regulation of restrictions on monopolistic activity in the market of goods, works and services: dis. ... cand. jurid. sciences'. Krasnodar, 2008. p. 6]. It is known that harm can be expressed in the restriction of competition or in direct infringement of the interests of other economic entities and citizens. Thus, the nature of the harm is both public and private. However, due to the constitutionality of the ban on monopolistic activity, the main focus of the Federal Law "On Protection of Competition" on ensuring the economic foundations of the constitutional order of the Russian Federation (unity of economic space, free movement of goods, freedom of economic activity in the Russian Federation, protection of competition and creation of conditions for the effective functioning of commodity markets), the principle of attributing the actions of economic entities to monopolistic activity it should reflect the danger of behavior specifically for competition.

A similar position on this issue was expressed by A. N. Varlamova. The author proposes to introduce the concept of "harm to competition" into the legislation [Varlamova A. N. Legal assistance to the development of competition in commodity markets: dis. ... doct. jurid. M., 2008. p. 15]. It seems that the concept of harm to competition should become one of the elements of the basis of liability for violation of antimonopoly legislation, and its presence or absence should be a criterion for differentiating liability.

As noted in science, the concept of unfair competition and its forms enshrined in the Federal Law "On Protection of Competition" have many disadvantages, among which one can highlight the lack of exhaustive criteria for unambiguous determination of the act of unfair competition, indications of the offender's guilt, the inability to accurately determine the boundaries of unfair competition [Serebruev I. V. Crimes encroaching on the integrity of competitive relations: genesis, system, criminal law characteristics: dis. ... cand. jurid. sciences'. Yekaterinburg, 2016. p. 62], uncertainty in the concept of the subject of unfair competition [Isaicheva E. A. Unfair competition as a socio-legal phenomenon: historical and legal aspect: abstract. ... cand. jurid. sciences'. Saratov. 2011. p. 10.] ^{[8, p. 73]}.

These comments seem rational, because the answers to these questions are very important for understanding what criminal liability should be for encroachments on fair competition. The definition of a legal phenomenon recognized as an offense and entailing negative consequences for the violator should be as accurate and understandable as possible, contain exhaustive and specific signs and not give rise to subjective assessments. This thesis is especially important for the purposes of criminalization of the act.

In addition to the above, researchers identify other provisions of the Federal Law "On Protection of Competition" that require revision, in particular, in order to successfully combat corruption [Varlamova A. N. Legal assistance to the development of competition in commodity markets. p. 12] ^{[9, pp. 206-207; 10, pp. 205-206]}.

Thus, the criminal law policy in the field of competition protection is directly related to competition policy, is dependent on its directions, since the legislative regulation of competitive relations, tightening prohibitions or softening the state reaction to certain anti-competitive actions, directly affects the processes of their criminalization and decriminalization, as well as differentiation of responsibility. At the same time, the shortcomings of competition legislation affect the effectiveness of bringing perpetrators to criminal responsibility for anti-competitive acts, the signs of which, including blank ones, for one reason or another raise questions among law enforcement officers and give rise to the problem of fairness of responsibility. Among the measures that could contribute to changing the situation, the following should be mentioned:

1) improvement of the existing criminal law norms providing for the description of the signs of crimes, including the formalization of the compositions of the most dangerous crimes for competition (art. 146, 147, 178, 180, 185.3, 185.6 The Criminal Code of the Russian Federation), which would more meet the requirements of the national (including economic) security of the country;

2) criminalization of anticompetitive agreements involving government officials;

3) differentiation in the Federal Law "On Protection of Competition" of the concepts of a classic cartel in the commodity market and collusion at auction, as well as differentiation of criminal liability for the conclusion and implementation of these types of anticompetitive agreements;

4) the establishment of a clear criminal law prohibition of unfair competition by including in the Criminal Code of the Russian Federation a description of such a crime in the form of either a separate corpus delicti "Unfair competition", or the inclusion of an additional qualifying attribute "for the purpose of unfair competition" in the existing corpus delicti;

5) improvement of the program of mitigation of responsibility for the cartel, provided as a special basis for exemption from criminal liability for committing a crime under Article 178 of the Criminal Code of the Russian Federation;

6) the inclusion in the Federal Law "On Protection of Competition" of an additional preventive measure in the form of a ban on participation in auctions for a certain period in respect of those economic entities that have already been prosecuted for participating in collusion at auctions;

7) the inclusion in the Federal Law "On Protection of Competition" of the legal term "harm to competition" proposed in science, the presence or absence of which would be linked to the basis of liability for violation of the law and its differentiation;

8) establishment of legislative bases for interaction between antimonopoly and law enforcement agencies by making appropriate additions to the Federal Law "On Protection of Competition", the Federal Law "On Operational Investigative Activities" and the Criminal Procedure Code of the Russian Federation.

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