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Dominant person definition


How Can You Tell If Someone Has a Dominant Personality?

A dominant personality involves traits like proactivity, assertiveness, and often, extroversion. Agression and manipulation are also possible.

That assertive co-worker pushing you to your limits might be a team asset and goal-oriented, but a dominant personality could be challenging to handle.

Not all people with a dominant personality behave in the same way. You could find a self-assured friend who always seems to lead the way or a peer who doesn’t hesitate to use intimidation to get what they want.

In general, some of the traits associated with this power-oriented personality type can be challenging to navigate.

A dominant personality is a personality type that often leads themselves and others into action. It’s primarily defined by an overarching motivation for power and a sense of pride.

This doesn’t mean dominant personalities are always eager to obtain power or behave like tyrants. Instead, it may mean some of them can behave in ways that are persistently:

  • confident
  • assertive
  • unrelenting

Dominance across many species is often associated with patterns of behaviors that involve intimidation, coercion, and aggression. But when it comes to humans, this isn’t always the case or if it is, it doesn’t always have a negative connotation.

In 1928, William Moulton Marston proposed a human behavioral model of emotions now known as DiSC, which categorized human behaviors into four quadrants:

  • dominance
  • inducement (influence)
  • submission
  • compliance

Under the DiSC model, dominant personality traits include:

  • impatience
  • manipulation
  • egotism
  • bluntness
  • stubbornness
  • determination
  • aloofness
  • perfectionism
  • restlessness

But, according to Dr. Nereida Gonzalez-Berrios, a board certified psychiatrist out of Houston, being dominant isn’t solely about the negative, controlling behaviors. This would be one end of the possibility spectrum of dominant traits.

“A person with a dominant personality type is assertive, courageous, proactive, and self-reliant,” she says. “They are focused and goal-oriented as well. These individuals carry themselves in a manner that is socially impressive and emanates positive vibes to others.”

She adds that dominant personalities often have high self-esteem and confidence levels.

Other characteristics Gonzalez-Berrios says may come with a dominant personality include:

  • dedication to hard work
  • strong leadership abilities
  • high positivity
  • stoicism
  • self-control
  • confident body language

Dominant vs. influential personality

Under the DiSC model, dominant personality is associated with results or reaching a goal. It’s about “leading the way.”

Influential personalities can also be leaders, but under DiSC standards, they do so by working with those around them, cultivating relationships, and focusing on social recognition rather than achievements.

Gonzalez-Berrios explains dominant personalities are not usually strong with social skills.

Instead, as goal-oriented, driven individuals, they can be challenging to sway with compromise and may be rigid in their processes and thoughts.

“As far as empathy and compassion are concerned, it is usually less than others,” she says. “They do not
like to follow but prefer to lead.”

Being dominant in relationships may come naturally to some people. Dominant personalities like the challenge of leading others, for example, or they feel empowered when they take charge.

A dominant personality in a relationship may want to make decisions for you, but they could also encourage and motivate you to action.

In some cases, dominant tendencies may lead someone to engage in abusive and toxic relationship behaviors.

But abusive behaviors in a relationship, which are always about power and control, can be signs of a mental health condition and not only a personality type.

A 2012 review into dominance behavior found dominant personality traits often overlapped with mania and narcissism.

Psychopathy has also been associated with dominance and power seeking, though a 2017 study found this framework of dominance was linked primarily to gaining social standing and not personal achievement.

To deal with a dominant personality in your life, Gonzalez-Berrios recommends the following tips.

Changing your communication style

“You need to be commanding and clear about your needs with them,” says Gonzalez-Berrios. “They are not interested in finding out hidden stories.”

Gonzalez-Berrios suggests:

  • avoiding small talk
  • steering clear of nit-picking
  • focus on facts and outcomes during a conversation

Accepting them for who they are

A dominant person’s behavior isn’t a reflection of how they feel about you. Most likely, they aren’t targeting you — they treat everyone, including themselves, this way.

They may not use sweet-talking or display a friendly attitude, says Gonzalez-Berrios. Instead, they may come through as bold, straightforward and to-the-point.

Most of the time, they expect the same from you.

Staying one step ahead

Gonzales-Berrios suggests keeping up on new skills and efficiency routines that may help you appeal to the problem-solving nature of a dominant personality type.

If you’re one step ahead, it can be difficult for them to feel the need to direct you.

Setting boundaries

Accepting dominant personality traits doesn’t mean you have to put up with inappropriate behaviors or with attitudes you don’t feel comfortable with.

Setting clear boundaries can be a way for you to protect your physical and mental well-being. It can also provide a standard and a way to say “no” without needing a list of reasons or excuses.

While a dominant personality is often associated with negative traits of aggression and manipulation, there are many positive traits to be recognized, as well. Dominant people can be strong leaders, dedicated, and goal-oriented.

If you’re finding it challenging to co-exist with a dominant personality, changing your communication style and setting clear boundaries can help.

Dominant Definition & Meaning - Merriam-Webster

1 of 2

dom·​i·​nant ˈdä-mə-nənt 

ˈdäm-nənt

1

a

: commanding, controlling, or prevailing over all others

the dominant culture

b

: very important, powerful, or successful

a dominant theme

a dominant industry

the team's dominant performance

2

: overlooking and commanding from a superior position

a dominant hill

3

: of, relating to, or exerting ecological or genetic dominance

dominant genes

dominant and recessive traits

4

biology : being the one of a pair of bodily structures that is the more effective or predominant in action

dominant eye

used her dominant hand

dominantly adverb

dominant

2 of 2

1

music : the fifth tone of a major or minor scale (see scale entry 5 sense 1)

2

a

genetics : a character or factor that exerts genetic dominance (see dominance sense 1b)

b

ecology : any of one or more kinds of organism (such as a species) in an ecological community that exerts a controlling influence on the environment and thereby largely determines what other kinds of organisms are present

dominant conifers

c

sociology : an individual having a controlling, prevailing, or powerful position in a social hierarchy : a dominant (see dominant entry 1 sense 1) individual in a social hierarchy

Synonyms

Adjective

  • arch
  • big
  • capital
  • cardinal
  • central
  • chief
  • first
  • foremost
  • grand
  • great
  • greatest
  • highest
  • key
  • leading
  • main
  • master
  • number one
  • No. 1
  • numero uno
  • overbearing
  • overmastering
  • overriding
  • paramount
  • predominant
  • preeminent
  • premier
  • primal
  • primary
  • principal
  • prior
  • sovereign
  • sovran
  • supreme

See all Synonyms & Antonyms in Thesaurus 

Example Sentences

Adjective The company is now dominant in its market. It is the dominant culture in the region. the dominant female of the pack

Recent Examples on the Web

The bottom line is, Garrett has been dominant against the Bengals in his career. —Ashley Bastock, cleveland, 9 Dec. 2022 Justin Verlander wasn’t the only dominant force on Houston’s pitching staff in 2022. —Josh Criswell, Chron, 9 Dec. 2022 On the court, Griner was a dominant force in leading Baylor to the 2012 NCAA championship, then went on to stardom as a lanky anchor for the WNBA's Phoenix Mercury and as a two-time Olympic gold medalist with Team USA. —Arkansas Online, 9 Dec. 2022 In interviews with more than two dozen current and former Ukrainian and U.S. officials, analysts and others, nearly all agreed that the dominant power of oligarchs in Ukrainian life has been diminished. —Kostiantyn Khudov, Washington Post, 8 Dec. 2022 Amazon reviewers with different hand sizes, grip types, and dominant hands praised the mouse for its comfortable ambidextrous design. —Harry Rabinowitz, Popular Mechanics, 8 Dec. 2022 But the 6-foot-1, 287-pound junior has become one of the most dominant interior linemen in the country this season. —Paul Johnson, Chicago Tribune, 8 Dec. 2022 The growing defense and geopolitical aspects of the Chinese-Saudi relationship alarm Washington, which has long been the dominant security force in the energy-rich Middle East. —Stephen Kalin, WSJ, 8 Dec. 2022 As in many other American cities, the D.E.A.’s prime targets were distributors working with the Sinaloa Cartel, then the dominant drug organization in western Mexico. —Tim Golden, New York Times, 8 Dec. 2022

However, the drug was tested in unvaccinated people during the Delta variant surge, so the results could look different for people who take the pills now, with the Omicron variant dominant. —Jen Christensen, CNN, 22 July 2022 Sunday’s blowout loss and last week’s stunning defeat to the Jets have erased all the goodwill coach Zac Taylor earned from a 5-2 start and a dominant over the Ravens. —C.j. Doon, baltimoresun.com, 9 Nov. 2021 But the system has changed to become point-guard dominant. —Ira Winderman, sun-sentinel.com, 24 Oct. 2021 If Duarte pans out, he's considered a more versatile version of McDermott who is right-hand dominant and primarily used on one side of the floor because of it. —J. Michael, The Indianapolis Star, 30 July 2021 In California, new data from the California Department of Public Health found that 35.6% of coronavirus variants analyzed in June have been delta variant, up from 5.6% in May and making the delta variant the dominant in the state. —Elinor Aspegren, USA TODAY, 5 July 2021 After six wins last season behind a dominant, if under the radar, nationally ranked defense, WVU could be poised for a move in the Big 12. —Chuck Carlton, Dallas News, 28 May 2021 The vaccine also has been found to have good efficacy against the variant dominant in South Africa. —Mogomotsi Magome And Andrew Meldrum, Star Tribune, 14 Apr. 2021 Experts think the AstraZeneca vaccine could still offer better protection against severe disease and death caused by the variant dominant in South Africa, but that has not yet been tested. —Mogomotsi Magome, Star Tribune, 16 Feb. 2021 See More

These example sentences are selected automatically from various online news sources to reflect current usage of the word 'dominant. ' Views expressed in the examples do not represent the opinion of Merriam-Webster or its editors. Send us feedback.

Word History

Etymology

Adjective and Noun

Middle French or Latin; Middle French, from Latin dominant-, dominans, present participle of dominari — see dominate

First Known Use

Adjective

circa 1532, in the meaning defined at sense 1a

Noun

1819, in the meaning defined at sense 1

Time Traveler

The first known use of dominant was circa 1532

See more words from the same year

Dictionary Entries Near

dominant

dominance

dominant

dominant seventh chord

See More Nearby Entries 

Cite this Entry

Style

MLAChicagoAPAMerriam-Webster

“Dominant. ” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/dominant. Accessed 19 Dec. 2022.

Copy Citation

Kids Definition

dominant

1 of 2 adjective

dom·​i·​nant ˈdäm-(ə-)nənt 

1

a

: commanding, controlling, or having great influence over all others

a dominant political figure

b

: very important, powerful, or successful

a dominant industry

2

: rising high above the surroundings

3

: predominant, outstanding

4

: exhibiting genetic dominance

a dominant gene

dominant traits in peas

compare recessive entry 1 sense 2

5

: of, relating to, or being an ecological dominant

dominantly adverb

dominant

2 of 2 noun

1

a

: a dominant gene or a character which it controls

b

: a kind of living thing (as a species) that has a major influence on the environment of an ecological community

2

: the fifth note of the musical scale

Medical Definition

dominant

1 of 2 adjective

dom·​i·​nant -nənt 

1

: exerting forcefulness or having dominance in a social hierarchy

2

: being the one of a pair of bodily structures that is the more effective or predominant in action

the dominant eye

3

: of, relating to, or exerting genetic dominance

dominantly adverb

dominant

2 of 2 noun

1

: a dominant genetic character or factor

2

: a dominant individual in a social hierarchy

More from Merriam-Webster on

dominant

Nglish: Translation of dominant for Spanish Speakers

Britannica English: Translation of dominant for Arabic Speakers

Britannica. com: Encyclopedia article about dominant

Last Updated: - Updated example sentences

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Merriam-Webster unabridged

abuse of dominant position may lead to negative consequences in adjacent markets

One of the AG experts noted that the FAS clarified the “sore point” of whether entities belonging to a group of persons can enter into anti-competitive agreements. The second stressed that these recommendations cannot be considered official, since they were issued on behalf of the scientific and methodological council of the FAS. The third pointed out the fallacy of absolutizing the conclusion that in order to ascertain the abuse of a dominant position, the fact of restriction (risk of restriction) of competition in an adjacent market does not require an analysis of the state of competition in the adjacent market itself. The fourth added that in this case, the recommendations actually exempt the FAS from the need to conduct an analysis on the adjacent market, which is not in line with the law. nine0003

On April 13, the FAS Russia published recommendations on the application of antimonopoly legislation. The Office indicated that the document provides answers to questions on which there was no common understanding before.

As indicated on the website of the antimonopoly authority, the initial version of the recommendations was prepared by the scientific and methodological council of educational organizations and departments of competition law and antimonopoly regulation of the FAS Russia at the end of 2019. The legal department of the antimonopoly service finalized a number of issues and prepared the final document. nine0003

Abuse of dominance

The FAS believes that, based on the results of consideration of an individual’s application for violation of antimonopoly legislation, a case may be initiated on the grounds of abuse of a dominant position if it is established that the actions of an economic entity have led or may lead to negative consequences under Part 1 of Art. 10 of the Competition Law. At the same time, the very fact of initiating an antimonopoly case on the basis of an application by an individual does not affect the assessment of the actions of an economic entity, the result of which may be infringement of the interests of both the applicant and an indefinite circle of persons. nine0003

Regarding the definition of the concept of "an indefinite circle of consumers", the antimonopoly authority indicated that it is used not in the sense of the impossibility to establish the number of such persons, but in the context of the plurality of consumers whose rights and legitimate interests may be affected by the actions of a person occupying a dominant position. Thus, as an abuse of a dominant position, the result of which is or may be an infringement of the interests of an indefinite circle of consumers, one should consider the establishment or maintenance by the dominant subject of a monopoly high price of goods and the violation of the pricing procedure established by regulatory enactments. nine0003

It is noted that for the purposes of establishing a dominant position, the time interval for analyzing the state of competition should include the period of the alleged violation of the antimonopoly law. The analysis is carried out on the basis of all the information available at the time of its conduct, while it is allowed to use the results of the analysis carried out earlier than the studied actions of the economic entity were committed. For example, if all available sources contain information only for the period preceding the date of the action, or provided that the state of competition in the market remains unchanged at the time of the action. nine0003

When evaluating abuse of dominance, it is imperative to evaluate the market dominated by the economic entity. At the same time, the result of actions (inaction) in this product market may be negative consequences in adjacent markets. At the same time, the document emphasizes that the fact of restriction or possibility of restriction of competition in the related product market must be established as part of the consideration of the case and does not require an analysis of the state of competition in the related market. nine0003

It is emphasized that barriers to entry into the commodity market are one of the key components that the antimonopoly authority evaluates when analyzing the state of competition in the commodity market. However, the mere fact that a new entity entered the commodity market during the period considered by the antimonopoly authority is not a sufficient reason to consider the barriers low or easily overcome.

The FAS indicated that the assessment of the price of a product to determine whether it is monopoly high or monopolistically low should begin with establishing the existence of comparable competitive markets and the price of the product in such comparable markets. At the same time, the establishment of a monopolistically high (low) price using one cost method is possible in the absence of a comparable product market, in which the price of the product is formed in a competitive environment. nine0003

The absence of an economic justification for an economic entity to increase or maintain the previously established price of the goods, which makes it possible to assess the level of expenses necessary for the production and sale of goods, when establishing a set of other conditions provided for in Part 1 of Art. 6 of the Law on Protection of Competition, may indicate the establishment of a monopoly high price.

Concluding this section of the recommendations, the FAS noted that it is not allowed to determine a dominant position in accordance with Part 3 of Art. 5 of the Law on Protection of Competition only on the basis of information about the size of the shares of economic entities, that is, on the basis of only a quantitative criterion, without considering the qualitative characteristics of the product market, provided for in paragraphs 2 and 3 of part 3 of Art. 5 of this act. nine0003

Effect of preferences and subsidies on competition


As stated in the document, the provision of subsidies to non-profit organizations engaged in entrepreneurial activities, according to the FAS, may contain signs of restricting competition and be considered as providing benefits, including when granting them preferences.

At the same time, organizations subordinate to state authorities and local self-government bodies, including unitary enterprises and institutions, are business entities in the understanding of the Law on Protection of Competition. That is, giving them advantages through the allocation of subsidies can lead to a change in the competitive environment. nine0003

The Federal Antimonopoly Service believes that subsidizing by the authorities of subordinate organizations created by them in order to carry out their activities in competitive commodity markets related to meeting state or municipal needs may indicate the implementation of a method of avoiding competitive procedures, and therefore is subject to verification to establish signs of violation Part 1 Art. 15 of the Competition Law.

Agreements restricting competition

First of all, the antimonopoly service pointed out that any cartel is harmful to competition. “This legal position is the basis for domestic competition law in the field of combating cartels and judicial practice,” she stressed.

When proving the existence of an anticompetitive agreement, it is necessary to evaluate all the evidence and their weight both individually and in the aggregate, the FAS of Russia believes. At the same time, it is emphasized that the legislation does not and cannot determine what evidence confirms the fact of the conclusion of an anticompetitive agreement, and the requirements for the form of supporting documents are not and cannot be established. nine0003

The sufficiency of evidence in each case is determined on the basis of an assessment of the totality of facts, including on the basis of the general state of affairs in the commodity market, which predetermines the predictability of such behavior as a group model that allows, through its use, to derive non-competitive advantages, as indicated in the recommendations. At the same time, the results of the ORM are not evidence, but only information about the sources of those facts that, being obtained in compliance with the requirements of the law, can become evidence only after fixing them on the basis of the relevant norms of the Code of Criminal Procedure of the Russian Federation. nine0003

The FAS also recalled that the mere inclusion of economic entities as a group of persons does not exclude the extension of a ban on them to conclude agreements restricting competition. A necessary condition for allowing the possibility of concluding those specified in Art. 11 of the Law on Protection of Competition of agreements is the establishment by one of these entities of control over another or the presence of such entities under the control of one person (part 7 of article 11 of the Law on Protection of Competition).

Procedural matters

It is noted that the issuance of a warning does not imply the collection of evidence to the extent necessary to establish the fact of a violation. To issue a warning, it is necessary to establish the presence of signs of a violation to the same extent as when making a decision to initiate a case on violation of the antimonopoly law. At the same time, when making a decision to issue a warning, the antimonopoly body is not entitled to rely only on the applicant's assertion that there are grounds for issuing it. nine0003

The Federal Antimonopoly Service recalled that simultaneous bringing to administrative responsibility for violation of antimonopoly legislation and issuing an order to transfer income received as a result of such a violation (if it is executed) to the budget are not allowed. In this regard, in law enforcement practice, the question arises of the priority of the measures of responsibility taken by the antimonopoly body. In its recommendations, the agency proceeds from the fact that if an administrative fine can be calculated from the amount of revenue or expenses, then an order to transfer income is not issued. nine0003

In conclusion, the agency indicated that the collegial body of the FAS Russia, based on the results of considering a complaint against a decision or instruction of its territorial body, in the event that a decision is made to cancel such an act, has the right to send the case for a new consideration to this territorial body.

AG experts commented on recommendations

“Antitrust law, like other branches, strives for uniformity of law enforcement. Reviews of judicial practice, reviews of the practice of the antimonopoly bodies themselves, and analyzes of the decisions of the Appeals Board of the FAS Russia are very helpful in achieving this goal. These recommendations are no exception: they reflect both the approaches of the antimonopoly authorities themselves and the courts,” said Anastasia Yaremchuk, head of the antimonopoly practice of Rights Business Standard (RBS). nine0003

The expert recalled that the antimonopoly legislation is relatively young, therefore it contains many gaps that are actively filled in practice. According to her, the recommendations under consideration reflect the shortcomings of such norms that have been revealed in a practical way.

“Attention is drawn to the explanations regarding anticompetitive subsidizing of organizations subordinate to local governments (unitary enterprises): for several years, the FAS Russia has been trying to fix the practice of bringing to responsibility for legalized circumvention of tenders,” said Anastasia Yaremchuk. The approach specified in the recommendations will make it possible to make interaction in competitive markets more transparent, she believes. nine0003

“It is worth noting that it was the identification of this “loophole” that became the basis for initiating at the end of 2018 amendments to the legislation regarding the reorganization of all unitary enterprises into joint-stock companies and budgetary institutions. This was done in order to return SUEs and MUPs to competitive markets and equalize their rights with other players in the respective markets,” said Anastasia Yaremchuk.

According to her, the “sick” issue, despite the obvious clarity of the norm, has long been the use of exemptions under anti-competitive agreements: can all the signs of a group of persons be exempt from liability, or only “special” control of subjects to each other? “Uniformity was clearly needed. In addition to what is reflected in the recommendations, it is worth noting the recently resolved issue of trust management and its correlation with a group of persons, as excluding liability for collusion,” the lawyer said. nine0003

In addition, the issue of concretizing the powers of the Board of Appeal as the highest level of antimonopoly authorities is of particular importance for the antimonopoly authorities themselves. “The absence of the power to send the case for a new trial, expressly prescribed in the law, somewhat limited both the collegium itself and the territorial bodies, whose decisions were simply canceled without the right to correct errors in the case when they did not indicate the absence of a violation at all. The absence of this authority could lead to non-responsibility for non-compliance with antimonopoly legislation,” Anastasia Yaremchuk explained. Without the right to refer the board for a new consideration, sometimes there were not enough grounds for a full cancellation of decisions, which could lead to the upholding of decisions with incompletely established (considered) circumstances that could potentially affect the correctness of the decision on the merits, Anastasia Yaremchuk added. nine0003

Bryan Cave Leighton Paisner Antimonopoly Practice Counsel (formerly Goltsblat BLP in Russia) Andrey Neminshchiy stressed that these recommendations cannot be considered an official clarification or interpretation of antimonopoly legislation or the practice of its application by the FAS Russia. “They are issued on behalf of the Scientific and Methodological Council of Educational Organizations and Departments of Competition Law and Antimonopoly Regulation of the FAS Russia, whose status is advisory in nature and whose competence does not include giving clarifications on the application of antimonopoly legislation. For example, the Presidium of the FAS Russia has such powers,” the expert explained. nine0003

At the same time, the fact that these recommendations are sent to regional departments for their use in work, which the FAS mentioned on its website, raises some concerns, since such recommendations can actually be perceived as the official position of the service, Andrei Neminushchiy noted. “After all, along with well-founded and well-established positions in practice, some provisions of the recommendations are at least controversial and do not fully comply with the provisions of the Law on Protection of Competition,” he stressed. nine0003

This thesis, according to the expert, concerns a number of market analysis provisions. For example, the approach to qualifying entry barriers to the market as low and easily overcome, which calls for the need to prove a combination of circumstances, some of which are not provided for by Order No. 220 of the Federal Antimonopoly Service of Russia of April 28, 2010, establishing the procedure for market analysis, or by the explanations of the Presidium of the FAS, raises questions. Russia on this issue.

“One of the circumstances that needs to be established along with the fact of the emergence of a new participant in the market is the expansion of production capacities of other market participants that do not occupy a dominant position. If this approach is followed, then a situation may arise in which several new participants will enter the market, but since other market participants did not expand their production capacities in the period under review (although, for example, they could increase their output), the entry barriers to such a market cannot be assessed as low. This approach does not seem reasonable," Andrey Neminushchy commented on his position. nine0003

From his point of view, the position is also inconsistent with the Law on Protection of Competition, according to which the fact of classifying companies as a group of persons in accordance with “Clause 2 of Article 9 of the Law on Protection of Competition” is not sufficient to apply the exception provided for in Part 7 of Art. 11 of the Law on Protection of Competition, despite the fact that such a basis is directly indicated in part 8 of this article as one of the grounds for exercising control and applying an exception. “This approach seems doubly strange because the recommendations directly cite Part 8 of Art. 11, which provides for the exercise of the functions of the executive body of a legal entity as one of the signs of control. Apparently, there was a typo in the text, the authors could have meant paragraph 2 of part 1 of Art. ninelaw. Perhaps this position was not aimed at limiting the effect of the said exception in this way, and the authors wanted to refer to Part 2 of Art. 9 of the Law on Protection of Competition, however, the wording used in the text raises questions,” the expert noted.

As another example of the imperfection of the wording, he noted the position of the recommendations regarding the impossibility of qualifying an unreasonable price increase as a violation of the general prohibition on abuse of a dominant position, provided for in Part 1 of Art. 10 of the Law on Protection of Competition, and the need to use the composition of a monopoly high price in this case. nine0003

According to Andrey Neminushchiy, this provision, which is absolutely correct in its essence, can be interpreted as exempting the FAS Russia from studying the level of expenses of the company if it does not have an economic justification for the corresponding price and, in this case, it is necessary to prove only other signs of a monopoly high price, provided for in Part 1 of Art. . 6 of the Competition Law. “Such a conclusion obviously contradicts the specified norm and the previously given clarifications, which oblige the antimonopoly authority to investigate the level of expenses, regardless of whether the economic entity has submitted an appropriate economic justification or not. It remains to be hoped that such an interpretation will not be applied in practice, and the relevant wording will be finalized,” the expert concluded. nine0003

Lawyer, managing partner of the consulting company Kulik & Partners Law.Economics Yaroslav Kulik agreed that the recommendations contain approaches already well known to practicing lawyers in many respects, however, positions on some issues, according to him, are controversial. In particular, this refers to the issue of establishing the consequences (or the threat of their occurrence) of the abuse of a dominant position in the form of restricting competition in an adjacent market.

In its recommendations, the FAS says that the fact of restriction or possibility of restriction of competition in the adjacent market should be established as part of the consideration of the case and does not require an analysis of the state of competition in the adjacent market itself. “However, this statement is not entirely true and may be mistakenly perceived by the antimonopoly authorities as a general approach, which it cannot be,” Yaroslav Kulik believes. nine0003

He recalled that according to paragraph 5.4 of Art. 45 of the Law on Protection of Competition, when considering a case on violation of the antimonopoly law, the antimonopoly body analyzes the state of competition to the extent necessary to make a decision on the presence or absence of a violation of the antimonopoly law. “A literal interpretation of the procedure for analyzing the state of competition in the product market, approved by FAS Order No. 220, indeed makes it difficult to determine the scope of studying an adjacent market, the state of competition of which is or may be influenced by the behavior of a dominant entity in the market where it dominates. However, the terminology of Order No. 220, like that of the Law on Protection of Competition, is equally market-neutral in terms of restricting competition,” the lawyer noted. nine0003

The law defines in Art. 4 signs of restriction of competition, for the identification of which it is necessary to at least minimally study the target market in which such restriction is manifested or may appear in order to understand its key characteristics, Yaroslav Kulik explained. “The establishment of any fact requires its proof. No one has canceled the obligation of the antimonopoly body to prove the facts on which its conclusions are based, with the exception of cases expressly provided for by law. Therefore, the antimonopoly body needs to investigate the related market, but the scope of such research is not specifically described in Order No. 220. However, there are no other normative acts regulating the analysis of the state of competition in the commodity market,” the lawyer emphasized. nine0003

Kulik & Partners Law.Economics lawyer Pavel Dmitriev added that, while substantiating his position on the possibility of establishing consequences in the form of restriction of competition due to abuse of a dominant position in an adjacent market, the FAS does not take into account all the unique factual circumstances of case No. А40-3363/2018 (the department referred to in the guidelines). The expert emphasized that the defendant in this dispute occupied a dominant position in the natural monopoly market. nine0003

He noted that sub. "b" clause 1.3 of Order No. 220 provides that in cases initiated on the grounds of a violation of Art. 10 of the Law on Protection of Competition in relation to a natural monopoly entity in a market operating under natural monopoly conditions, an analysis of the state of competition in the commodity market should include, among other things, the stage of determining the product boundaries of the commodity market, which is carried out according to the areas of activity of subjects of natural monopolies.

“Thus, the legislator directly provided for a special procedure for determining product boundaries when considering cases in relation to subjects of natural monopolies. It was the formal limitation of the scope of the analysis of the state of competition for this type of market, known for its controversial manifestations in practice, that was the basis for the conclusion of the court that the analysis of the state of competition in an adjacent market, which is directly affected due to the possibility of disposing of the infrastructure of inland waterways (berths) in order to establish its dominant position within the product boundaries defined by the Law on Natural Monopolies, is not provided for by the current legislation, - Pavel Dmitriev explained. “Meanwhile, the FAS Russia has changed this conclusion, setting it out as a general approach.” nine0027

Such an interpretation actually implies the release of the antimonopoly authority from conducting an analysis of the state of competition in the adjacent market, which is not in accordance with the law, the lawyer concluded.

Some issues of abuse of a dominant position by an economic entity in the commodity market

References:

Remezova, IA Some issues of abuse of an economic entity by a dominant position in the commodity market / IA Remezova. - Text: direct // Law: history, theory, practice: materials of the V Intern. scientific conf. (St. Petersburg, July 2017). - St. Petersburg: Own publishing house, 2017. - S. 27-30. — URL: https://moluch.ru/conf/law/archive/227/12751/ (date of access: 19.12.2022).



Liberalization and improvement of antimonopoly legislation is the main trend in the activities of the state in the field of competition. One of the recent steps in this direction was the adoption of the Federal Law of October 5, 2015 No. 275-FZ "On Amendments to the Federal Law "On Protection of Competition" and Certain Legislative Acts of the Russian Federation" [1] (hereinafter - Law No. 275-FZ FZ) - the so-called fourth antimonopoly package, which introduced a number of novelties in the legal regulation in the relevant area, in particular, the rules on abuse of dominant position were significantly changed. nine0003

At present, by virtue of Art. 5 of the Federal Law of July 26, 2006 N 135-FZ "On the Protection of Competition" [2] (hereinafter - ZZK), 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 subject (group of persons) or such economic entities (groups of persons) the opportunity to exert a decisive influence on the general conditions for the circulation of goods on the relevant commodity market, and (or) eliminate other economic entities from this commodity market, and (or) impede access to this commodity market other business entities. nine0003

The legislator has established criteria in the form of a market share of an economic entity that determine the applicable legal regime of a dominant position:

1) a threshold of 50% of the share occupied by an economic entity. If the share of an economic entity is below this threshold, its position is not considered dominant, unless otherwise proven; if the share is higher, then its position is not considered dominant if it is established that, despite the excess of the specified value, the position of the economic entity in the commodity market is not dominant. nine0003

2) a threshold of 35% of the share occupied by an economic entity. If this threshold is exceeded, at the request of interested parties, the antimonopoly authority may establish that the relevant entity has a dominant position. Law No. 275-FZ eliminated the possibility of recognizing a position as dominant at a share threshold of less than 35%; at present, exceptions are made for cases when establishing collective dominance and others provided for by other federal laws. So, by virtue of paragraph 3 of Art. 25 of the Federal Law of March 26, 2003 N 35-FZ "On the Electric Power Industry" [3], the position of an economic entity is recognized as dominant if at least one of the following conditions is met: nine0003

– the share of the installed capacity of its generating equipment or the share of electricity generation using the specified equipment within the boundaries of the free flow zone exceeds 20%;

– the share of purchased or consumed electrical energy and (or) power within the boundaries of the corresponding free flow zone exceeds 20%.

Especially, by analogy with the regulation of subjects of natural multipolies, the legislator singled out subjects whose market share exceeds 70%: now the Government of the Russian Federation can establish rules for non-discriminatory access to the goods of an economic entity, if by decision of the FAS Russia it is established that such an entity, occupying in the commodity market a share of over 70%, abused his dominant position (part 5 of article 10 of the LCA). However, as it is rightly noted in the literature, the share of such business entities in the commodity market can change significantly, however, the norms of the Law and Procedure Code do not provide for the abolition of the rules introduced by the Government of the Russian Federation. nine0003

According to Part 1 of Art. 10 of the LCA prohibits actions (inaction) of an economic entity occupying a dominant position, the result of which is or may be the prevention, restriction, elimination of competition and (or) infringement of the interests of other persons (economic entities) in the field of entrepreneurial activity or an indefinite number of consumers. Art. 14.31 of the Code of the Russian Federation on Administrative Violations [4] establishes sanctions for business entities for violations of this prohibition. In this case, the consumer is understood as a legal entity or an individual purchasing goods - this definition was also a novelty introduced by Law No. 275-FZ. nine0003

Thus, Law No. 275-FZ of the provisions of Part 1 of Art. 10 of the Law and Procedure Code were supplemented with an indication of the entities whose interests are infringed - business entities in the field of entrepreneurial activity or an indefinite circle of consumers. At the same time, jurisprudence uniformly proceeds from the fact that in order to qualify actions (inaction) as abuse of a dominant position, it is sufficient to have (threat of offensive) any of the consequences listed in the legislation [5,6,7]. It should be noted that Law No. 275-FZ quite rightly recognizes not only the seller, but also the consumer of goods as a potential monopolist (in particular, agreements not only between competing business entities, i.e. between business entities selling goods on the same commodity market, but also between economic entities purchasing goods on the same commodity market). nine0003

This innovation should be supported, since “it is known that in modern conditions, commodity producers, i. e. sellers of goods, can also act as a weak side” [8], although, of course, to a lesser extent.

In addition, Law No. 275-FZ abolished the application of sanctions related to the prohibition on the abuse of a dominant position for offenses that result (may result) infringement of the interests of certain individuals and legal entities not related to entrepreneurial activities. That is, in the case when the illegal actions of an economic entity infringe on the interest of not an indefinite circle of consumers, but of a specific person, then it is necessary to apply not the provisions of the Law and Procedure Code, but the rules on consumer protection. So, the Supreme Court of the Russian Federation in the Ruling of July 4, 2016 N 301-KG16-1511 in the case N A82-777 / 2015 [9]. pointed out that, in itself, the violation of the Rules for the Provision of Postal Services in relation to a specific user of postal services, without establishing circumstances indicating a violation by the postal operator in the improper provision of postal services of the antimonopoly legislation, which is due precisely to the abuse of its dominant position, does not is a violation of antitrust laws. The position of the court is fair, since the alleged violation (refusal to issue correspondence and untimely response to a claim) does not lead to the prevention, restriction and elimination of competition, and also does not indicate an infringement of the economic interests of others, but the exercise of supervision and control over activities in the field of postal communications in the provision of postal services to specific consumers does not fall within the competence of the antimonopoly authority. nine0003

Finally, when establishing the fact that an economic entity abuses its dominant position, one should take into account clause 4 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2008 No. 30 “On Certain Issues Arising in Connection with the Application of Antimonopoly Law by Arbitration Courts” [10], in which the Supreme Arbitration Court of the Russian Federation clarified that in relation to actions or omissions directly named in Part 1 of Art. 10 of the Law and Procedure Code, the presence or threat of the corresponding consequences is assumed and does not require proof by the antimonopoly body. nine0003

To identify cases of preventing, restricting or eliminating competition, including when considering cases of violations of antimonopoly legislation, as well as in order to establish the dominant position of an economic entity, the Procedure for analyzing the state of competition in the commodity market (hereinafter referred to as Procedure N 220) is used [11] .

By virtue of clause 1.3 of Order N 220, the analysis of the state of competition in the commodity market is carried out in several mandatory stages, including: determining the time interval for researching the commodity market; determination of product boundaries of the commodity market; determination of the geographical boundaries of the commodity market; determination of the composition of economic entities operating in the commodity market as sellers and buyers; calculation of the volume of the commodity market and the shares of economic entities in the market; determination of the level of concentration of the commodity market; determination of barriers to entry into the commodity market; assessment of the state of the competitive environment in the commodity market; drawing up an analytical report. nine0003

At the same time, to this day, the antimonopoly authorities and courts ambiguously define the boundaries of the commodity market. In the practice of higher courts, there are cases when the size of the antimonopoly body appointed by an act on bringing to administrative responsibility under Art. part 2 of Article 14.31 of the Code of Administrative Offenses of the Russian Federation of an economic entity, the fine was reduced, among other things, on the grounds that the antimonopoly authority incorrectly defined the boundaries of the commodity market [12, 13]. In another case, the court satisfied the requirement to declare it illegal and cancel the decision to prosecute under Part 2 of Art. 14.31 of the Code of Administrative Offenses of the Russian Federation for abuse of a dominant position in the commodity market, since the antimonopoly authority did not provide adequate evidence of the dominant position of a group of persons of OJSC (as a buyer of goods) and the correct definition of the product boundaries of the market [14]. nine0003

Thus, despite the generally positive nature of the innovations introduced by Law No. 275-FZ, some issues of the application of legislation prohibiting the abuse of a dominant position by an economic entity, a number of issues (in addition to those indicated, in particular, one can also note the relationship between intellectual property rights and the requirements of antimonopoly legislation , the need to revise tariff regulation) remains unresolved.

Literature: nine0003

  1. Federal Law of October 5, 2015 No. 275-FZ "On Amendments to the Federal Law "On Protection of Competition" and Certain Legislative Acts of the Russian Federation" // ATP "ConsultantPlus"
  2. Determination of the Supreme Court of the Russian Federation of November 20, 2015 N 305-KG15-1236 in case N A40-81895 / 2013 // SPS "ConsultantPlus"
  3. Federal Law of March 26, 2003 N 35-FZ "On the Electric Power Industry@ // SPS "ConsultantPlus"
  4. "Code of the Russian Federation on Administrative Offenses" dated December 30, 2001 N 195-FZ (as amended on 06/07/2017) // SPS "ConsultantPlus"
  5. Resolution of the Supreme Court of the Russian Federation of October 29, 2015 N 302-AD15-13253 in case N A33-23686 / 2014 // SPS "ConsultantPlus"
  6. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 20, 2013 N 17786/12 in case N A19-507/2012 // ATP "ConsultantPlus"
  7. Determination of the Supreme Court of the Russian Federation of July 4, 2016 N 301-KG16-1511 in case N A82-777 / 2015 // SPS "ConsultantPlus"
  8. Egorova M. A. Development of the norms on the dominant position in the “fourth antimonopoly package / M. A. Egorova / / Lawyer. No. 7, pp. 10–14. nine0148
  9. Determination of the Supreme Court of the Russian Federation of July 4, 2016 N 301-KG16-1511 in case N A82-777 / 2015 // SPS "ConsultantPlus"
  10. Decrees of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30, 2008 N 30 "On some issues arising in connection with the application of antitrust laws by arbitration courts" // ATP "ConsultantPlus"
  11. Order of the Federal Antimonopoly Service of Russia dated April 28, 2010 N 220 "On Approval of the Procedure for Analyzing the State of Competition in the Commodity Market" // Bulletin of Normative Acts of Federal Executive Authorities. 2010. N 34. nine0148
  12. Resolution of the Supreme Court of the Russian Federation of June 24, 2016 N 309-AD16-6475 in case N A07-19813 / 2014 // SPS "ConsultantPlus"
  13. Resolution of the Supreme Court of the Russian Federation of June 15, 2015 in the case N 308-AD15-2242, A15-1309 / 2013 // SPS "ConsultantPlus"
  14. Resolution of the Supreme Court of the Russian Federation of December 28, 2015 N 305-AD15-16610 in case N A40-200856 / 2014 // SPS "ConsultantPlus"

Basic terms (automatically generated) : economic entity, dominant position, commodity market, antimonopoly law, antimonopoly authority, postal service, group of persons, Russian Federation, entity, entrepreneurial activity. nine0183 persons , entrepreneurial activities .

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