Fifth Antimonopoly Package Officially Unveiled at the April Conference

The search for consensus on antitrust law in the digital age, when traditional instruments stop working, is a complex affair. Participants in the plenary session ‘A New Phase of Antimonopoly Policy: Presenting the 5^th Antimonopoly Package’ at the HSE’s XIX April International Academic Conference, engaged in heated debate about the potential consequences of introducing fundamentally new legislative norms.

FAS head Igor Artemev gave the first official presentation of this ‘digital package’, developed by the Federal Antimonopoly Service in conjunction with the HSE-Skolkovo Institute of Law and Development. He is certain that, in todays environment, there is an acute need for radical legislative changes.

The 5^th Antimonopoly Package is fully devoted to regulating the digital economy. Currently, technologies that use ‘big data’ are considered intellectual property rather than material objects, and hence have immunity from antimonopoly law. After the adoption of the 5^th Antimonopoly Package, they will fall under antitrust regulations. New concepts are being introduced, including: ‘network effects’ – meaning that an economic entity can be recognized as dominant irrespective of its market share; and ‘price algorithm’ – using price monitoring in the interests of a particular company. Digital platforms will be obligated to ensure indiscriminate access to consumer data. The 5^th Antimonopoly Package will also toughen scrutiny over major transactions. For one such deal, the merger of international entities Bayer and Monsanto, the Center for Technological Transfer was established at HSE.

Irina Kotelevskaya, Director of the Center for Monitoring Legislation and Law Enforcement Practices at the Russian Union of Industrialists and Entrepreneurs (RSPP), voiced business fears: ‘Today every new word sparks fear and resistance.’ The introduction of concepts such as ‘network effects’ spark concerns as to whether digital trading platforms may be impacted, and whether it will be used to prove the existence of cartels. Entrepreneurs are also alarmed by the introduction of a new concept of ‘trusted individual’, ‘but we really hope that this work will not be rushed,’ she added in conclusion. RSPP President and Head of the HSE Department of the Theory and Practice of Business-Government Interaction, Alexander Shokhin also expressed his hope that the new package would not be adopted until solutions to all questions raised have been found that all market participants deem acceptable.

Not all representatives of the business community were so sceptical. Nadezhda Kashchenko, Chief Intellectual Property Counsel at Kaspersky Lab, said that they fully support the 5^th Package and view it as an entirely positive development.

The need for the 5^th Antimonopoly Package is greater in Russia than in other jurisdictions, said Alexey Ivanov, Director of the HSE-Skolkovo Institute for Law and Development, since in most countries across the world, antimonopoly law is based on 3-4 principles that the regulator and courts apply to circumstances that arise. Things are different in Russia, where new principles have to be introduced via legislation. As one of the developers of the 5^th Antimonopoly Package, Alexey Ivanov stressed that ‘the working group took a highly conservative position. We studied global legal practice and included only those norms that have already proved useful in other countries.’

‘On behalf of Russia’s economists I would like to express my gratitude,’ said Svetlana Avdasheva, Deputy Director of the Institute for Industrial and Market Studies. Noting that the proposal is highly innovative – but chiefly in form rather than content, she said that this is what sparked concern among the business community and experts, as the introduction of new concepts since ‘it is still unclear how they will be interpreted’, she explained.

‘We see here vast enthusiasm, and that means this discussion should continue’ noted First Vice Rector of the HSE Lev Jacobson.