China's Anti-monopoly Law, which has been in force for 11 years, ushered in its first \"overhaul\" key node. On January 2, the official website of the State Administration of Market Supervision and Administration published the revised draft of the Anti-monopoly Law (Draft Law on Public Consultation), which will openly solicit opinions from January 31 to January 31.
It is worth noting that the consideration of new forms of Internet business is included: in determining that the operator has a dominant market position, in addition to the basis of general application, the draft for soliciting views specifically mentions that \"the determination that the operator of the Internet has a dominant market position should also take into account factors such as network effect, economies of scale, lock-in effect, and the ability to hold and process relevant data.\"
In recent years, the competition of internet industry has become intense, and the restricted trading behavior represented by \"choosing one from two\" is becoming more and more regular, which has an impact on market competition and consumer interests. In fact, in September 2019, the official implementation of the \"interim provisions on the prohibition of abuse of market dominance\" and other anti-monopoly laws, has been judged to have market dominance in the field of the Internet in other circumstances to make clear.
In an interview with the Beijing Youth Daily, Wei Shilin, secretary-general of the Competition Law Committee of the Beijing Intellectual Property Law Institute, said that countries and regions such as the United States and the European Union have anti-monopoly regulations on Internet giants Amazon, Facebook and Google, made it clear that the \"barbaric growth\" of the Internet industry has become a thing of the past, and now it is necessary to pay attention to operational compliance issues.
Wei Shilin believes that when China's Antimonopoly Law was promulgated and implemented in 2008, China's Internet economy development has not reached the stage of today's development. Eleven years later, when the anti-monopoly law was amended, it added contents involving Internet monopoly law enforcement, such as \"determining that Internet operators have a dominant market position and considering such factors as network effect, economies of scale, lock-in effect, ability to grasp and process relevant data \". This is primarily to address the issue of the legal basis. Although the supporting regulations have provisions, but there is no basis for the upper law itself, now clear in the law, so that the law enforcement has a more legal basis. But it also makes it more difficult to enforce monopoly law in the field of Internet, such as how to define network effect, scale economy and so on.
《 The monopoly acts stipulated in the draft revised Antimonopoly Law for soliciting opinions include: the conclusion of monopoly agreements by operators, the abuse of market dominance by operators and the concentration of operators who have or may have the effect of excluding or restricting competition. Operators may, through fair competition and voluntary association, implement centralization according to law, expand the scale of operation and improve the market competitiveness. A business operator with a dominant market position shall not abuse its dominant market position and exclude or restrict competition.
Drafts for soliciting opinions prohibit operators with competitive relations from entering into the following monopoly agreements: fixing or changing commodity prices; restricting the quantity of goods produced or sold; dividing the market for sales or purchasing; restricting access to new technologies and equipment or restricting the development of new technologies and products; boycotting trades; and other monopoly agreements determined by the antitrust enforcement agencies under the State Council.
However, if the operator can prove that the monopoly agreement reached is \"for the improvement of technology, research and development of new products \",\" for the improvement of product quality, cost reduction, efficiency, uniform product specifications, standards or professional division of labor \",\" for the sake of economic depression, to alleviate the serious decline in sales or overproduction \", the above provisions are not applicable.
Drafts for soliciting views prohibit operators with market dominance from engaging in the following abuses of market dominance: selling goods at unfairly high prices or buying goods at unfairly low prices; selling goods at below-cost prices without justification; refusing to trade with the counterpart of the transaction without justification; limiting the counterpart of the transaction to trade with them or only with the operator designated by them without justification or with other unreasonable trading conditions, etc.
The determination that an operator has a dominant market position shall be based on such factors as the market share of the operator in the relevant market and the competitive situation of the relevant market, the ability of the operator to control the market for sales or purchase of raw materials, the financial resources and technical conditions of the operator. However, in any of the following cases, it may be assumed that the operator has a dominant market position: one operator has a market share of one-half in the relevant market; two operators have a market share of two-thirds in the relevant market; and three operators have a market share of three-fourths in the relevant market.
According to the regulations, if a business operator meets the standards for declaration prescribed by the anti-monopoly law enforcement agency under the State Council, the business operator shall report to the anti-monopoly law enforcement agency under the State Council in advance, and the business operator who has not reported shall not be allowed to centralize. The anti-monopoly law enforcement agencies under the State Council may formulate and revise the declaration standards according to the level of economic development and the scale of the trade, etc., and shall promptly publish them to the public. Where the concentration of a business operator reaches the declaration standard, where the concentration of a business operator fails to declare according to law, or the concentration of a business operator fails to meet the declaration standard, but has or may have the effect of excluding or restricting competition, the anti-monopoly law enforcement agency under the State Council shall conduct investigations according to law.
Any business operator who, in violation of the provisions of this Law, enters into or implements a monopoly agreement, shall be ordered by the anti-monopoly law enforcement agency to stop the illegal act, confiscate the illegal gains and impose a fine of not less than one percent but not more than ten percent of the sales volume of the previous year. Any business operator who, in violation of the provisions of this Law, abuses its dominant position in the market, shall be ordered by the anti-monopoly law enforcement agency to stop the illegal act, confiscate its illegal gains and impose a fine of not less than one percent but not more than ten percent of its sales in the previous year. (Lin Lai-shuang)