"Big data mastering" has a criterion

The Anti-Monopoly Commission of the State Council issues guidelines to promote the orderly, innovative and healthy development of the platform economy

　　● The Anti-Monopoly Commission of the State Council recently issued the "Guidelines for Anti-Monopoly in the Field of Platform Economy" to prevent and stop monopolistic activities in the field of platform economy and promote the orderly, innovative and healthy development of platform economy

　　● Persist in treating market players equally and equally, improve the legal norms for platform enterprise monopoly recognition, protect fair competition in the platform economy, prevent the disorderly expansion of capital, and focus on safeguarding the legitimate interests of all parties

　　● Regarding issues such as “choosing one of two” and “big data”, clarified the criteria for judging whether relevant behaviors constitute monopolistic behaviors

　　□ Our reporter Wan Jing

　　Recently, the Anti-Monopoly Commission of the State Council formulated and issued the "Guide to Anti-monopoly in the Platform Economy Field" (hereinafter referred to as the "Guide"), emphasizing that the anti-monopoly law and supporting laws and regulations apply to all industries, and treat all types of market players equally and fairly. Prevent and stop monopolistic behavior in the platform economy, and promote the orderly, innovative and healthy development of the platform economy.

　　In response to hot issues such as “choose one” and “big data”, which are frequently reflected by all parties in the society, the “Guide” clarifies that it is necessary to first define the relevant market and analyze the relevant market Whether the market has a dominant position, and then analyze whether it constitutes an abuse of market dominance based on the case.

　　It is reported that the "Guide" is based on the anti-monopoly law and consists of six chapters and 24 articles, including general provisions, monopoly agreements, abuse of market dominance, concentration of operators, abuse of administrative power to exclude restrictions on competition, and supplementary provisions.

The “Guide” defines the basic concepts of platforms, platform operators, operators in the platform, and operators in the field of the platform economy, and proposes that the anti-monopoly supervision of the platform economy should adhere to the protection of fair market competition, scientific and efficient supervision in accordance with the law, and stimulate innovation and creativity. The principle of safeguarding the legitimate interests of all parties.

Taking into account the complexity of the platform economy, the "Guide" emphasizes that the definition of the relevant market in the field of the platform economy needs to follow the general principles determined by the antitrust law, while considering the characteristics of the platform economy for case analysis.

Prevent the disorderly expansion of capital

Safeguard the legitimate interests of all parties

　　In recent years, my country’s platform economy has developed rapidly, and new formats and models have emerged one after another, which has played an important role in promoting high-quality economic development and meeting the people’s growing needs for a better life.

At the same time, there have been increasing reports and reports of suspected monopolistic issues such as operators in the field of platform economy requiring merchants to "choose one of two", "big data to kill familiarity", and failure to declare and implement operator concentration in accordance with the law.

　　"These actions harm fair market competition and the legitimate rights and interests of consumers, and are not conducive to fully stimulating the innovation and creativity of the whole society, promoting the innovative development of platform economy, and building new advantages and new momentum for economic and social development." The relevant person in charge of the Office of the Anti-Monopoly Committee of the State Council said For this reason, protecting fair market competition and safeguarding the legitimate interests of all parties have become the core concepts and principles of the Guidelines for regulating the healthy development of my country’s platform economy.

　　In fact, standardizing the order of market competition in the platform economy and maintaining fair competition are also signals that the central government has continuously released to the outside world recently.

For example, the recent Politburo meeting called for strengthening anti-monopoly and preventing the disorderly expansion of capital; the Central Economic Work Conference made strengthening anti-monopoly and preventing the disorderly expansion of capital as one of the eight key tasks in the economic work in 2021, requiring sound Digital rules, improve the legal norms of platform enterprise monopoly identification, strengthen regulation, enhance supervision capabilities, and resolutely oppose monopoly behavior.

　　"The anti-monopoly law applies to all industries, and all types of market players are treated equally and equally, and the platform economy is no exception." The relevant person in charge of the Office of the Anti-Monopoly Commission of the State Council said that we must adhere to the same treatment and equal treatment of market players, and focus on preventing and Stop monopolistic behavior, improve the legal norms for platform enterprise monopoly recognition, protect fair competition in the platform economy, prevent the disorderly expansion of capital, and focus on safeguarding the legitimate interests of all parties.

　　The development of the platform economy involves multiple parties. Anti-monopoly supervision protects fair competition in the field of the platform economy and makes full use of the platform economy to promote resource allocation optimization, technological progress, and efficiency improvement. At the same time, efforts should be made to safeguard the operators, consumers and practitioners on the platform. The legitimate rights and interests of the main body of the party to achieve the overall ecological harmony and healthy development of the platform economy

At the same time, the ultimate goal of protecting fair market competition and safeguarding the legitimate interests of all parties is to stimulate the innovation and creativity of my country's platform economy.

Actively respond to hot issues

Clarify relevant judgment standards

　　The most common focus of the "Guide" is the response to issues such as "choose one out of two" and "big data acquaintance", and clarify the criteria for determining whether relevant actions constitute monopolistic behavior.

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

　　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 laws and regulations to "choose one of two" behaviors 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.

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

　　The anti-monopoly law prohibits business operators from abusing their dominant market position and discriminating 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" 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 with the same conditions .

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.

　　Professor Wang Xianlin, vice president of the Economic Law Research Institute of the Chinese Law Society and member of the Expert Advisory Group of the State Council’s Anti-Monopoly Committee, believes that when determining whether a restricted transaction constitutes an abuse of market dominance, e-commerce platforms need to be restricted through service agreements and transaction rules. , Exclude operators from participating in business activities organized by other platforms and other behaviors are taken into consideration.

In the specific determination, it is ultimately necessary to analyze whether the implementation of the behavior has the effect of eliminating and restricting market competition, including whether the choice of e-commerce operators and consumers is improperly restricted, and whether other e-commerce platform operators are improperly excluded. Whether new market entry is severely hindered.

Obviously, the “choose one” behavior of e-commerce platforms has a more obvious blocking and repelling effect on competitors, curbing the development of incumbent competitors, affecting potential competitors’ entry into the market, and eliminating and restricting market competition.

Market dominance situation

Combine the five factors to identify

　　Since the implementation of the Anti-Monopoly Law on August 1, 2008, judging "abuse of market dominance" has always been a difficult and focal issue in judging whether it constitutes a monopoly.

Compared with traditional industries, it is more complicated to recognize that operators in the field of platform economy have a dominant market position. Their professional difficulty, special circumstances, and specific economic forms are very different from traditional market monopoly behavior.

　　According to the relevant person in charge of the Office of the Anti-Monopoly Commission of the State Council, the "Guide" mainly identifies and judges the "market dominance" situation of platform economic operators from five aspects.

　　One is about market share and related market competition.

The traditional indicators for calculating the market share of operators include sales amount, sales volume, etc.

Taking into account the particularity of the platform economy, the "Guide" clarifies that the market share of operators in the field of platform economy can consider indicators such as transaction amount, number of transactions, number of active users, clicks, and duration of use.

In view of the dynamic competitive characteristics of the platform economy, the duration of the market share must also be considered.

　　The second is about the ability to control the market.

The "Guide" clarifies the ability to analyze and control the market based on the characteristics of the platform economy. The operator's ability to control the upstream and downstream markets or other related markets can be considered to hinder and affect the ability of other operators to enter the relevant market, the relevant platform business model, Network effects and the ability to influence or determine prices, flows, or other trading conditions.

　　The third is about financial resources and technical conditions.

Regarding the consideration of the financial and technical conditions of operators in the field of platform economy, the "Guide" clarifies the assets scale, profitability, financing capacity, technological innovation and application capabilities, intellectual property rights owned, and what financial and technical conditions can be The degree of promotion of traditional factors such as business expansion or consolidation of the operator, and maintenance of market position, as well as factors that require special considerations such as the operator’s investor profile, capital sources, and ability to master and process relevant data.

　　The fourth is about the degree of dependence.

According to the characteristics of the platform economy, the "Guide" clearly analyzes the degree of dependence of other operators on the operators in the platform economy, and can consider the transaction relationship, transaction volume, transaction duration, and lock-in effects between other operators and operators in the platform economy. , User stickiness, the possibility of other operators to switch to other platforms and conversion costs.

　　The fifth is the difficulty of entering the relevant market.

The factors that affect the difficulty of market entry in the platform economy are different from those in traditional industries.

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.

　　As we all know, an important condition that constitutes an abuse of market dominance is that the relevant behavior is "unjustified", which is also a difficult point in judging the monopolistic behavior of the platform economy market.

　　According to the relevant person in charge of the Office of the Anti-Monopoly Committee of the State Council, the "Guide" addresses the characteristics of the platform economy and enumerates the implementation of lower-cost sales, refusal of transactions, restricted transactions, tying or additional unreasonable transaction conditions, and differential treatment by operators in the field of platform economy. There may be legitimate reasons for abuse of market dominance.

The above-mentioned conduct by the relevant business operator does not necessarily constitute an abuse of market dominance, and the above-mentioned conduct does not constitute a violation of the law if it has a legitimate reason.

　　Taking into account the complexity of business conduct, in addition to expressly enumerating, the "Guide" also provides for the "other grounds that can prove the legitimacy of the conduct" a comprehensive clause, and made open-ended provisions for possible legitimate reasons.

In practice, if the operator can prove that the relevant conduct has justified reasons, it will not be deemed to constitute an abuse of market dominance.

Special review clause

Protect fair competition in the market

　　A reporter from the "Rules of Law Daily" noted that the previous anti-monopoly law on the prevention of abuse of administrative power to exclude and restrict competition is a comparative principle. The "Guide" special chapter provides provisions on the prevention of abuse of administrative power to exclude and restrict competition in accordance with the law, and details the specifics Performance of law enforcement.

　　For example, the "Guide" enumerates the possible abuse of administrative power to exclude and restrict competition in the field of platform economy one by one, detailing restrictions on transactions, hindering the free circulation of goods, restricting bidding, restricting investment, enforcing monopoly behavior, and formulating restrictions on exclusions. The specific manifestations of illegal activities such as the provisions of competition content are conducive to improving the operability of the "Guide".

　　In addition, the "Guide" also clearly stated that to prevent and stop the abuse of administrative power to exclude and restrict competition, the prior fair competition review should be organically combined with the subsequent abuse of administrative power to exclude and restrict competition.

To this end, the "Guide" specifically sets up fair competition review clauses to achieve an organic combination of the two, form a joint force, and effectively maintain a fair competition market environment in the platform economy.

　　Huang Yong, a professor at the Law School of the University of International Business and Economics and a member of the expert advisory group of the State Council’s Anti-Monopoly Committee, believes that my country’s fair competition review system has played an important role in preventing improper interference in the market by policy-making agencies at the source for more than four years.

At the same time, due to some problems in the system itself and implementation mechanisms, it is necessary to further improve the fair competition review system, strengthen the accountability of the fair competition review system, and promote the legalization of the fair competition review system.

　　It is reported that since the institutional reform, the anti-monopoly law enforcement agency has adhered to administration according to law, continued to increase enforcement of the abuse of administrative power to eliminate and restrict competition, and investigated and dealt with 136 cases of abuse of administrative power to exclude or restrict competition in accordance with the law, including operators in the field of platform economy. Various market players create a market environment for fair competition.

However, with the vigorous development of my country's platform economy, administrative agencies may implement some behaviors involving operators in the platform economy in the process of exercising administrative functions, and have a certain impact on market competition.

In order to protect fair competition in the market, the "Guide" sets up relevant provisions to regulate the abuse of administrative power in the field of platform economy to exclude and restrict competition, which can not only improve law enforcement transparency and unify law enforcement standards, but also provide important guidelines for administrative entities to improve platform economy The certainty of the field operator about the transaction.