Huang Yong 

Internet anti-monopoly: equal emphasis on regulation and development

  In 2021, the term "anti-monopoly" frequently enters the public eye.

  On December 16, the State Administration for Market Regulation held a competition policy and big data center establishment meeting. The center will conduct policy theoretical research in areas such as anti-monopoly, competition policy, and platform economy, and provide technical support for anti-monopoly law enforcement.

  On December 17, the 23rd meeting of the Central Deep Reform Commission held in Beijing pointed out that anti-monopoly and anti-unfair competition should be strengthened, market barriers should be removed, and resource allocation efficiency and fairness should be improved.

  Huang Yong, a member of the Expert Advisory Group of the State Council’s Anti-Monopoly Committee and a professor at the School of Law of the University of International Business and Economics, told Xinjing Think Tank that 2021 will be the "big year" for my country's competition policy and the "Anti-Monopoly Law."

Competition policy and the "Anti-Monopoly Law" have achieved many new results in terms of top-level design, perfection of rules, institutional mechanisms, and effectiveness of law enforcement.

  The Internet is the "epicenter" of antitrust.

On November 20, 2021, the State Administration for Market Regulation announced the punishment of 43 cases of failure to declare the illegal implementation of the concentration of undertakings in accordance with the law.

Ten Internet companies, including Tencent, Alibaba, Meituan, Baidu, JD.com, and 58 Group, were fined the most.

  Huang Yong said that compared with traditional industries, the difficulty of investigation and law enforcement in the Internet field has indeed increased greatly, and there has been a phenomenon that the regulatory system and mechanisms are not adapted to a certain degree.

The establishment of the National Anti-Monopoly Bureau not only implements the central government's important deployment of strengthening the anti-monopoly supervision force, shows China's determination to strengthen the basic position of competition policy, but also further meets the needs of the socialist market economy and high-quality development.

  With the rapid development of the platform economy, how can anti-monopoly law enforcement not only ensure the prosperity and development of the Internet, but also balance social interests?

Xinjing Think Tank interviewed Huang Yong for this.

The revision of the Anti-Monopoly Law is a minor revision

  Xinjing Think Tank: After the implementation of the "Anti-Monopoly Law (2007 Revised Edition)", it actually proposed another revision as early as 2015, but the revised draft was not released until October this year.

From the time when it was proposed to revise the Internet, the process has been accelerated in the last one or two years. Is this directly related to the frequent occurrence of monopoly cases and the prominent phenomenon of monopoly in the Internet field in recent years?

  Huang Yong: The legislation of my country's current "Anti-Monopoly Law" has gone through a long process of more than ten years. It was formally implemented on August 1, 2008 and has a history of more than 13 years.

Nowadays, my country's anti-monopoly rule system is not limited to the contents of Chapter 8 and Article 57 of the Anti-Monopoly Law. We now have administrative regulations, departmental rules, anti-monopoly guidelines, and judicial interpretations.

  In the Internet field, many judicial judgments have been produced. In 2021, not only new breakthroughs in law enforcement cases have been achieved, but the Anti-Monopoly Commission of the State Council has also issued the "Guidelines for Anti-Monopoly in the Field of Platform Economy".

It can be seen that the competition rules, law enforcement, and justice in the Internet field of our country are becoming more and more perfect.

Legislation and amendments are serious and professional matters, and there are strict procedures. Decisions cannot be made in a hurry.

  Judging from the current draft of the "Anti-Monopoly Law" for comments, this amendment is a minor revision. While reflecting the digital economy, it does not change the structure and thinking of the "Anti-Monopoly Law". This is not only in line with international consensus. , Also in line with our country’s current actual situation.

  Xinjing Think Tank: Is there any difference between monopolistic behavior in the Internet field and traditional industries?

What are the outstanding features?

What are the characteristics of my country's platform economy?

  Huang Yong: The platform economy is a new business that has developed rapidly in the past 20 years. It has many characteristics such as multilateral markets, network effects, and internationality. There are multiple stakeholders, business behaviors are changeable, and the impact of competition has multiple dimensions and methods for analysis and judgment.

  In recent years, the platform economy has been the focus and research area of ​​competition law enforcement in various countries and regions around the world. The EU's several high-value antitrust fines against Google in the United States have been particularly eye-catching.

When considering this issue, it should be noted that the institutional environment and industrial development status and trends of different countries and regions are also quite different.

  According to a data released a few days ago, the digital economy of the United States is about 13.6 trillion US dollars, ranking first in the world. UK.

For my country, the platform economy is an important carrier of industrial digitization and digital industrialization, as well as an important tool for fueling the real economy under the new economic situation. At the same time, under the background of accelerating the construction of a new development pattern, the platform economy can promote domestic, Play a role in the international double loop.

  Under such an international industrial competition pattern and development strategy, how to promote the development of the platform economy through supervision and ensure that the two are chasing one after the other needs to be treated with caution and carefully studied.

Internet regulation needs to prevent "one size fits all"

  Xinjing Think Tank: As a new business format, do some Internet platforms that have formed a monopoly position hide more "technologies" that harm public interests, and how should law enforcement agencies better detect and determine these monopolistic behaviors?

What are the difficulties and challenges?

  Huang Yong: With the continuous deepening of the understanding of the Internet industry from all walks of life, some problems have gradually been discovered, but these problems are not all anti-monopoly issues, and the "Anti-Monopoly Law" itself is not a panacea.

  For example, consumer rights protection, data security, personal information, privacy protection, advertising violations, unfair competition and other issues are regulated, supervised and enforced by other special laws and departments.

To sum up, it is that our country has the system characteristics of "multi-law co-governance and multi-department co-management", so it is very important to clarify the boundaries between different rules and how to coordinate supervision and law enforcement.

  From the perspective of anti-monopoly, whether commercial activities in the field of platform economy constitute monopolistic activities, it is necessary to judge whether the relevant activities have the effect of eliminating or restricting competition.

This requires comprehensive analysis and judgment of law, economy, and industry, especially in complex cases, and more scientific conclusions can be drawn after careful calculations.

  Xinjing Think Tank: This year, the anti-monopoly in the Internet field can be said to be a frequent move, and the stock prices of some companies have experienced large fluctuations.

How should we view the relationship between antitrust and the development of the Internet industry?

  Huang Yong: A series of important meetings and documents such as the 9th meeting of the Central Finance and Economics Commission, the 21st meeting of the Central Deep Reform Commission, the 34th collective study of the Political Bureau of the Central Committee, and the "Action Plan for Building a High Standard Market System" to be held in 2021, The overall orientation and key words are to enhance the international competitiveness of my country's platform economy, pay equal attention to regulation and development, regulate and develop in the development, promote the healthy and sustainable development of the platform economy in accordance with the law, and prevent simplification of prohibition or non-regulation "One size fits all" phenomenon.

  The platform economy is developing very rapidly, and supervision must also keep up with the platform economy's diverse and changeable new business forms, new technologies, and new models, and respect and conform to the law of development of the platform economy.

Considering industrial development, investment, innovation and many other issues, a very important aspect is to supervise and enforce the platform economy. While making punishment decisions, it is necessary to design corresponding remedies scientifically and reasonably to improve the market. The order of competition in China should also promote the development of the platform economy, taking into account both operability and effectiveness.

The "Anti-Monopoly Law" is the "nuclear weapon" in the regulatory rules

  Xinjing Think Tank: Judging from the current "Anti-Monopoly Law (Revised Draft)", do you think it can achieve the expected effect of balancing the development of the Internet and social interests?

  Huang Yong: The core purpose and role of the "Anti-Monopoly Law" is to protect the order of competition, give play to the decisive role of the market in the allocation of resources, and continue to promote innovation through market competition, so that consumers can enjoy lower prices and better quality Products, better services and more choices to safeguard the interests of consumers and the public interest of society.

  The "Anti-Monopoly Law (Revised Draft)" has many highlights in the draft for comments, such as the addition of principled expressions to monopolistic behavior in the digital economy.

In addition, very important are the new regulations on strengthening the basic status of competition policy and the fair competition review system.

This is of great significance to my country's establishment of a unified, open, and orderly competitive national market. It will help all industries in our country, including the Internet industry, enjoy the development dividends brought about by the comprehensive deepening of reform and opening up.

  In the future, platform economy anti-monopoly needs to start from the institutional framework of the anti-monopoly law, combine anti-monopoly regulations, guidelines, and judicial interpretations, and continuously strengthen professional and procedural law enforcement and justice to optimize regulatory norms and promote development.

  Xinjing Think Tank: Judging from the domestic penalties imposed on related anti-monopoly actions since 2021, do you think the anti-monopoly effect of the fine itself has reached expectations?

  Huang Yong: There is a metaphor in the anti-monopoly field. The Anti-Monopoly Law is a "nuclear weapon" in the regulatory rules. Therefore, at present, the anti-monopoly jurisdictions around the world generally put forward a lot of professionalism in the law, economics and industry analysis of anti-monopoly law enforcement. High demands.

In order to implement the professional analysis requirements of the Anti-Monopoly Law, various jurisdictions have generally made strict regulations on law enforcement procedures, including fully protecting the legitimate rights and interests of the party under investigation and enhancing the transparency of the law enforcement process.

  At the same time, I think the two very key aspects are that it is necessary to continuously analyze and judge the new formats and behaviors of the entire market, and to conduct a follow-up post-evaluation of the law enforcement that has already occurred. The role of fostering a culture of competition and promoting corporate compliance can also continuously optimize the effectiveness of anti-monopoly law enforcement.

The dynamic market research and post-assessment of law enforcement cases mentioned here are also practices that have been adopted by many antitrust jurisdictions around the world.

  Xinjing Think Tank: What do you think the establishment of the National Anti-Monopoly Bureau will mean for the Internet sector, and what impact will it have (for example, on the issue of balancing Internet development and social interests)?

  Huang Yong: The establishment of the National Anti-Monopoly Bureau is a result of the establishment of a unified anti-monopoly law enforcement system following the reform of the state institutions in 2018. By expanding one division into three divisions, the staffing and law enforcement resources have been increased and the central government has been implemented. The important deployment of strengthening the anti-monopoly supervision force shows China’s determination to strengthen the basic position of competition policy, and further meets the needs of the socialist market economy and high-quality development, and is more in line with the general experience in the implementation of anti-monopoly laws in the world and my country’s Special national conditions.

After enriching the anti-monopoly supervision power, in the future, my country's anti-monopoly law enforcement will continue to improve in terms of fair supervision and professionalism, and the ability to adapt to the challenges of complex cases will also be enhanced.

  my country, the United States and the European Union are collectively known as the world's three major anti-monopoly jurisdictions, and the United States and the European Union have independent, authoritative and efficient anti-monopoly law enforcement agencies.

Take the United States as an example. There are only about 1,000 anti-monopoly law enforcement personnel at the federal government level, and hundreds of lawyers and economists specializing in legal and economic analysis. In contrast, there is still a gap in my country’s law enforcement resources. Continue to reform and improve the space.

The public can participate in anti-monopoly through administrative and judicial channels

  Xinjing Think Tank: As a party of important interests, how do you think the public participates in anti-monopoly?

  Huang Yong: my country’s current "Anti-Monopoly Law" provides two different remedies, administrative and judicial. Article 38 stipulates that any unit or individual has the right to report suspected monopolistic activities to the Anti-Monopoly Law Enforcement Agency. At the same time, Article 50 refers to monopolistic activities. The civil litigation and claims for compensation provided the basis for the current draft of the revised law. It can also be seen that the relevant provisions of public interest litigation have been newly added.

  Consumers who believe that their legitimate rights and interests have been impaired need to pay attention to the differences in the application of the Anti-Monopoly Law, the Consumer Rights Protection Law, the Anti-Unfair Competition Law, etc., and the determination that the behavior has the effect of eliminating or restricting competition and calculations The monopoly losses suffered by individuals are a different aspect of the problem, which requires professional analysis, judgment and calculation.

The ability of users and consumers to choose appropriate rules to remedy their own legal rights and interests is also a manifestation of the improvement of my country's legal environment and competition culture.

  Xinjing Think Tank: The European Union previously launched two drafts of the "Digital Service Law" and the "Digital Market Law", aiming to create unified digital rules and protect the rights of digital service users.

From the perspective of ensuring the balance between the development of the digital economy and social interests, what do you think we need to learn from?

  Huang Yong: Not only the European Union is studying and formulating new rules, the United States is also preparing to introduce new bills in the field of digital economy, but it has not yet been officially promulgated and entered into force, so there is still uncertainty.

If we learn from experience, we need to rationally judge these different foreign experiences. In addition to seeing the rules themselves, we must also see the policy environment, the legal environment, the market environment, and the industrial prospects behind the rules.

It is necessary to pay attention to and compare the similarities and differences in the regulatory values ​​of different jurisdictions. We cannot learn from and transplant them mechanically. Instead, we must professionally judge my country's policies, rule of law and market environment, and draw conclusions based on the actual needs of my country's regulation and development.

  Beijing News reporter Xiao Longping