Chinanews client, Beijing, February 7th (Reporter Li Jinlei) The new anti-monopoly regulations are here and they will be implemented from the date of release.

  On February 7, the Anti-Monopoly Commission of the State Council issued the "Anti-Monopoly Guidelines of the Anti-Monopoly Commission of the State Council on Platform Economy", addressing issues such as "choosing one of two" and "big data" that have been more reflected in various aspects of society in recent years. Special regulations clarify the criteria for determining whether relevant actions constitute monopolistic actions.

The Anti-Monopoly Guidelines of the Anti-Monopoly Committee of the State Council on the Platform Economy.

"Big data kills familiarity" may constitute discrimination behavior

  The "Guide" makes it clear that "big data kills familiarity" may constitute an abuse of market dominance and discrimination.

  "Big data kills familiarity" is a general statement that the public uses big data and algorithms to analyze users' "portraits" on Internet platforms, thereby charging different prices.

  The responsible comrade of the Office of the Anti-Monopoly Commission of the State Council pointed out that the "Anti-Monopoly Law" prohibits operators from abusing their dominant market position and discriminates against counterparties in transactions with the same conditions in terms of transaction prices and other transaction conditions without justifiable reasons.

The "Guide" clarifies the factors that can be considered to constitute differential treatment, including the implementation of differential transaction prices or other transaction conditions based on big data and algorithms in the field of platform economy, according to the payment ability, consumption preferences, and usage habits of the counterparty of the transaction. .

  Regarding the determination of whether the transaction counterparty is "same conditions", the "Guide" specifically stipulates that differences in the privacy information, transaction history, individual preferences, consumption habits, etc. of the transaction counterpart obtained by the platform in the transaction do not affect the determination of the transaction counterparty conditions the same.

  In practice, if operators in the field of platform economy have a dominant market position and impose different transaction prices and other transaction conditions on different consumers, it may constitute a behavior of differential treatment.

Data map: Double 11.

Photo by Chinanews reporter Li Jinlei

"Two alternatives" may constitute restricted trading behavior

  The "Guide" makes it clear that "choosing one of the two" may constitute an abuse of market dominance to restrict transactions.

  "Choose one between two" is a general statement of the general public for platform operators that require platform operators not to operate on other competitive platforms and other unreasonable restrictions.

  The "Anti-Monopoly Law" prohibits operators from abusing their dominant market position, and there is no legitimate reason to restrict the counterparty of the transaction to only dealing with it or only with the designated operator.

Therefore, the prerequisite for the "Anti-Monopoly Law" to regulate "choice of two" behavior is that the operator who implements the behavior has a dominant market position.

  The "Guide" clarifies the factors that can be considered to constitute restricted transaction behavior, including platform operators requesting platform operators to "choose one of two" or other behaviors with the same effect between competing platforms.

  At the same time, from the perspectives of punitive measures and incentive measures, the "Guide" further refines the criteria for judging whether behaviors such as "choose one out of two" constitute restricted transactions: platform operators use blocked shops, search power reduction, traffic restriction, Restrictions on the implementation of punitive measures such as technical barriers and deduction of deposits can generally be deemed to constitute restricted transactions due to direct damage to market competition and consumer interests; platform operators provide incentives such as subsidies, discounts, concessions, and traffic resource support. If there is evidence to prove that the restrictions imposed by the method have an obvious exclusion or restriction effect on market competition, it may also be deemed to constitute a restricted transaction.

Data map.

Photo by Kang Yuzhan

Operators shall not implement concentration without declaration

  In addition to "choosing one of the two" and "big data," there are also increasing reports and reports of suspected monopoly issues such as failure to declare and implement operator concentration in accordance with the law.

  In 2020, the State Administration of Market Supervision imposed top penalties on Ali, Yuewen, and Fengchao for failing to declare the illegal implementation of operator concentration cases in accordance with the law, and each of the three companies was fined 500,000 yuan.

  The "Guide" clarifies that if the concentration of undertakings meets the reporting standards set by the State Council, the undertakings should report to the Anti-Monopoly Law Enforcement Agency of the State Council in advance, and they shall not implement the concentration if they fail to declare.

The concentration of undertakings involving the agreement control structure falls within the scope of the antitrust review of concentration of undertakings.

  The outside world is concerned about the circumstances under which the State Council’s anti-monopoly enforcement agency will actively investigate the concentration of undertakings that do not meet the reporting standards?

  According to Article 4 of the "Provisions of the State Council on the Standards for Declaration of Concentration of Undertakings", if the concentration of undertakings does not meet the declaration standard, but the facts and evidence collected in accordance with the prescribed procedures show that the concentration of undertakings has or may have the effect of eliminating or restricting competition, the State Council Anti-monopoly law enforcement agencies shall conduct investigations in accordance with the law.

  The Anti-monopoly Law Enforcement Agency of the State Council is highly concerned that the operators participating in the concentration are start-ups or emerging platforms, and the operators participating in the concentration adopt free or low-cost models, resulting in low turnover, high concentration in the relevant market, and a relatively large number of competitors. There is a concentration of operators in a small number of platforms in the economic field, and the Anti-monopoly Law Enforcement Agency of the State Council will investigate and deal with those that do not meet the reporting standards but have or may have the effect of eliminating or restricting competition.

(Finish)