Review of antimonopoly restrictions for unilateral actions of non-dominant business entities in foreign legislation

The competition laws of various states contain rules aimed at creating a balance between strong and weak business players. In addition to the traditional prohibition of abuse of a dominant position, a number of jurisdictions also contain restrictions on business activities for non-dominant business entities. After studying the relevant provisions, the author concludes that they are mainly formulated either as a prohibition of abuse of economic dependence, a prohibition of abuse of bargaining power, or a prohibition of one of the forms of unfair competition within the framework of antitrust rules, or within the framework of legislation regulating activities in certain industries. The author analyses these norms taking into account the historical development of antitrust regulation of this type of legal relations. Investigating the dynamics of foreign lawmaking and law enforcement, the author concludes that there is a potential expansion of the number of countries that will adopt this method of regulation for nondominant business entities. In almost all jurisdictions (except Greece), the weaker party can be protected administratively: the enforcer is the antitrust authority, which is authorised to investigate cases of abuse, issue injunctions and impose monetary administrative sanctions. Legislation of some countries of the Romano-Germanic group (Italy, France) also explicitly states that transactions made in violation of the requirements on prohibition of abuse of economic power are and void. The norm is applied frequently and in respect of rather large companies, only in the last 2 years two European states have updated their approach to regulating unilateral actions of non-dominant companies: Belgium introduced a new for this jurisdiction prohibition of abuse of economic dependence, and Germany expanded the scope of its application. The analysis shows that observing the economic situation and the development of contractual models where a business entity that does not formally occupy a dominant position can exert influence on its counterparty (which, as it seems, in the long term will inevitably affect the market as a whole), the state is increasingly using special rules to regulate situations where classical antimonopoly prohibitions are powerless. The author declares no conflicts of interests.

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