Abuse of a Dominant Position as a Specific Case of Abuse of the Right

Abstract

The issue concerning the interrelation between the concepts "abuse of dominant position" and "abuse of the right" has not been explicitly resolved in the legal doctrine so far. The paper the categories in question are compared against the following criteria: 1) composition of grounds for application; 2) purposes of legal regulation; 3) legal consequences of violation of norms in question; 4) principles of legal regulation; 5) the balance between private and public interests in the formation of the model of legal regulation of categories in question. The author considers the basic doctrinal approaches concerning the interrelation between the categories "abuse of the right" and "abuse of a dominant position." One approach is based on the identity of these categories, and the second approach, on the contrary, is based on their differentiation. Also, the paper scrutinizes a wide range of law enforcement practices applied by the FAS of Russia. The paper concludes that the presence of the market power provides an opportunity for the participant that possesses characteristics of the dominant position to enjoy his or her rights within the limits of common legal capacity unconscientiously (in bad faith) in in order to gain economic advantage (to the detriment of other market participants). Accordingly, the author argues that abuse of the dominant position should be regarded as a specific case of abuse of the right. In order to improve the antimonopoly legislation, de lege ferenda, it seems that, due to the peculiarities of the RF FAS law enforcement activities and functions, its competences should be significantly expanded in terms of the possibility to apply direct (cross-cutting) principles of civil law, such as the principle of reasonableness, the principle of fairness, the principle of good faith one of the elements of which is the principle of prohibition of abuse of the right. The author concludes that abuse of the dominant position cannot be regarded as anything but a form of abuse of the right that results or may result in preventing, limiting, or eliminating competition and (or) infringement of interests of other persons (economic entities) or uncertain circle of consumers in the sphere of business activity (Part 1 Art. 10 of the Federal Law "On Protection of competition). Besides sanctions provided for by administrative legislation, the denial of protection of the right (Para. 2 Art. 10 of the RF CC) and compensation for damages (Para. 4 Art. 10 of the CC) can be resorted to as consequences of abuse of the dominant position.