The head of the Office of the Anti-Monopoly Commission of the State Council interpreted the anti-monopoly guidelines in the field of platform economy——
"Choose One" and "Big Data" Suspected of Abusing Market Dominance
Our reporter She Ying
Recently, the Anti-Monopoly Commission of the State Council formulated and issued the Anti-Monopoly Guidelines of the Anti-Monopoly Commission of the State Council on Platform Economy (hereinafter referred to as the "Guide").
The head of the Office of the Anti-Monopoly Committee of the State Council accepted an interview with reporters on the "Guide."
Question: Regarding issues such as "choosing one of the two" and "big data mastering", what are the provisions of the "Guide"?
Answer: The "Guide" clarifies the criteria for determining whether relevant behavior constitutes a monopolistic behavior.
One is to make 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 premise of the "Anti-Monopoly Law" regulating the "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" among competing platforms or other behaviors with the same effect.
The second is to clarify that "big data kills familiarity" may constitute an abuse of market dominance and differential treatment.
"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 "Anti-Monopoly Law" prohibits business operators from abusing their dominant market position and imposing differential treatment on trading partners with the same conditions in terms of trading prices and other trading 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. .
Question: Compared with traditional industries, what are the peculiarities of determining that operators in the field of platform economy have a dominant market position, and what factors need to be considered?
Answer: The analytical framework for determining that operators have a dominant market position as stipulated in the "Anti-Monopoly Law" applies to all market entities including operators in the platform economy.
The "Guide" further refines the considerations for determining that operators in the field of platform economy have a dominant market position.
One is about market share and related market competition.
The "Guide" clarifies that the market share of operators in the economic field of computing platforms can consider indicators such as transaction amount, number of transactions, number of active users, clicks, and duration of use.
The second is about the ability to control the market.
The “Guide” clarifies the ability to analyze and control the market. It can consider the operator’s ability to control the upstream and downstream markets or other related markets, hinder and affect the ability of other operators to enter the relevant market, relevant platform business models, network effects, and influence or The ability to determine prices, flows, or other trading conditions, etc.
The third is about financial resources and technical conditions.
The "Guide" clarifies including the scale of assets, profitability, financing capabilities, technological innovation and application capabilities, intellectual property rights owned, and the extent to which the financial and technical conditions can promote the business expansion or consolidation of the operator, maintain market position, etc. Traditional factors.
The fourth is about the degree of dependence.
The "Guide" clearly analyzes the degree of dependence of other operators on operators in the economic field of the platform, and can consider the transaction relationship between other operators and operators in the economic field of the platform, transaction volume, transaction duration, lock-in effect, user stickiness and other The possibility for operators to switch to other platforms and conversion costs.
The fifth is the difficulty of entering the relevant market.
The "Guide" specifies relevant considerations in detail, including market access, platform scale effects, capital investment scale, technical barriers, user diversification, user conversion costs, ease of data acquisition, user habits, etc.
Question: An important condition that constitutes an abuse of market dominance is that the relevant behavior is "unjustified". What specific provisions are made in the Guidelines?
Answer: The "Guide" enumerates the legitimate reasons that may exist when operators in the field of platform economy conduct below-cost sales, refusal to trade, restricted trading, tie-in sales or additional unreasonable trading conditions, differential treatment, and other abuses of market dominance.
The above-mentioned conduct by the relevant business operator does not necessarily constitute an abuse of a dominant market position, and does not constitute a violation of the law if there are legitimate reasons.
The "Guide" also provides for the "other reasons that can prove the legitimacy of the behavior" as a comprehensive clause.
Our reporter She Ying