China News Service, February 7th. According to the website of the State Administration for Market Regulation, the Anti-Monopoly Commission of the State Council recently 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 responsible comrade of the Office of the Anti-Monopoly Commission of the State Council accepted an interview on the "Guide."
Question 1: Please introduce the background of the formulation and publication of the "Guide"?
Answer: 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.
However, at the same time, there have been increasing reports and reports of suspected monopoly issues such as operators in the field of platform economy requiring merchants to "choose one of two", "big data", and failing 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.
General Secretary Xi Jinping emphasized that good laws and good governance ensure the healthy development of new business forms and new models.
The recent Politburo meeting called for strengthening anti-monopoly and preventing the disorderly expansion of capital.
The Central Economic Work Conference will strengthen anti-monopoly and prevent the disorderly expansion of capital as one of the eight key tasks in the economic work in 2021. It requires the improvement of digital rules, the improvement of legal norms such as platform enterprise monopoly recognition, strengthening of regulations, and enhancement of supervisory capabilities , Resolutely oppose monopoly behavior.
The basic system, regulatory principles and analytical framework of China’s Anti-Monopoly Law are applicable to operators in the field of platform economy. However, due to the complex business model and competitive ecology of the platform economy, wide scope and strong professionalism, it needs to be in line with current laws, regulations, On the basis of a good connection between regulations and guidelines, combined with the development status, operating characteristics and operating rules of the platform economy, the principles of anti-monopoly law enforcement in the platform economy are further clarified, and targeted and detailed analysis ideas are provided for operators in the platform economy to comply with laws and regulations. Regulatory operations provide clearer guidelines, strengthen the pertinence of law enforcement, enhance the scientific nature of supervision, and protect fair market competition and consumer interests.
To this end, the Anti-Monopoly Committee of the State Council, in accordance with the "Anti-Monopoly Law" and other relevant regulations, based on my country's national conditions and law enforcement practices, fully learns from mature foreign experience, and extensively listens to the opinions and suggestions of platform operators, platform operators and other market entities, experts and scholars. The "Guide" was issued to focus on building anti-monopoly regulatory rules that conform to the stage of my country's economic and social development and the characteristics of platform economic development, and promote the orderly, innovative and healthy development of platform economic norms.
Question 2: What principles does the anti-monopoly law enforcement agency adhere to in carrying out anti-monopoly supervision in the field of platform economy?
Answer: The "Anti-Monopoly Law" applies to all industries and treats all types of market players equally and equally, and the platform economy is no exception.
In recent years, with the development of the platform economy, suspected monopolistic behaviors such as "big data acquaintance", restricted transactions, and refusal of transactions have appeared in the field of platform economy, and the Matthew effect of "the stronger the stronger" in the field of platform economy has intensified.
From a global perspective, the anti-monopoly law enforcement agencies of various countries have paid great attention to the development of platform economy, and have taken measures to strengthen the anti-monopoly supervision of the platform economy, especially the super-large Internet platform enterprises.
In order to create a fair and competitive market environment conducive to innovation and better promote the innovation and development of the platform economy, the anti-monopoly law enforcement agency resolutely implements the decisions and deployments of the Party Central Committee and the State Council, fully implements the requirements of the "Guide", and adheres to strict, fair and civilized law enforcement. Effectively strengthen anti-monopoly supervision in the field of platform economy in accordance with the following principles:
(1) Protect fair competition in the market.
Adhere to the same treatment and equal treatment of market entities, focus on preventing and stopping monopolistic behavior, improve the legal norms for platform enterprise monopoly recognition, protect fair competition in the platform economy, prevent the disorderly expansion of capital, support platform enterprise innovation and development, and enhance international competitiveness.
(2) Scientific and efficient supervision according to law.
The basic system, regulatory principles and analytical framework determined by the Anti-Monopoly Law and related supporting laws, regulations, and guidelines are applicable to all market entities in the platform economy.
The anti-monopoly law enforcement agency will strengthen competition analysis and legal argumentation based on the development status, development rules and own characteristics of the platform economy and the specific circumstances of the case, continuously strengthen and improve anti-monopoly supervision, and enhance the pertinence and scientific nature of anti-monopoly law enforcement.
(3) Stimulate innovation and creativity.
Create an orderly competitive, open and inclusive development environment, reduce market entry barriers, guide and encourage platform operators to use more resources for technological innovation, quality improvement, service enhancement and model innovation, prevent and stop the elimination and restriction of competition, and inhibit platform economic innovation Development and economic vitality effectively stimulate the innovation and creativity of the whole society, and build new advantages and new momentum for economic and social development.
(4) Safeguard the legitimate interests of all parties.
The development of platform economy involves multiple parties.
Anti-monopoly supervision protects fair competition in the platform economy, makes full use of the platform economy to promote resource allocation optimization, technological progress, and efficiency improvement. At the same time, it strives to protect the legitimate rights and interests of operators, consumers, and practitioners on the platform, and strengthen anti-trust The overall coordination of monopoly law enforcement and industry supervision will enable the whole society to share the achievements of platform technology and economic development, and realize the harmonious symbiosis and healthy development of the platform economy as a whole.
Question 3: Compared with traditional industries, what are the characteristics of monopoly agreements in the field of platform economy? What specific regulations does the "Guide" make?
Answer: Compared with the traditional industry, the monopoly agreement behavior in the platform economy shows some new characteristics.
One is that the behavior is more concealed.
The use of data, algorithms, platform rules, etc. makes it more difficult to discover and determine monopoly agreements.
Data, algorithms, platform rules, etc. may help operators quickly and frequently exchange sensitive information such as prices, and timely monitor the performance of co-conspirators, and algorithms, etc., have replaced traditional communication methods such as telephone, conference, and email, possibly through digital signals. The transmission is to realize the exchange of specific sensitive information, increasing the difficulty of discovery and investigation by law enforcement agencies.
Second, it is easier to reach a hub and spoke agreement.
Platform operators organize bilateral or multilateral groups for interaction and matching, assume the role of market organizer, and set up and intervene in price mechanisms, trading mechanisms, and competition rules.
With the platform operator as the axis and the platform operator as the spokes, it is easier to implement the act of using algorithms and other technical tools to reach and implement monopoly agreements.
Third, platform operators may put forward requirements on the trading conditions between the platform operators and other competitive platforms.
For example, it is common for platform operators to require operators on the platform to provide them with trading conditions equal to or better than other competitive platforms in terms of price and quantity.
It needs to be pointed out that under the current Anti-Monopoly Law, the above-mentioned actions may constitute a monopoly agreement, or may constitute a monopoly behavior that abuses a dominant market position, and it must be analyzed in detail based on individual cases.
In response to the above-mentioned characteristics of monopoly agreement behavior in the platform economy, the "Guide" makes corresponding provisions to provide clearer guidance for operators in the platform economy.
As stipulated in Article 6 of the "Guide", horizontal monopoly agreements that may be reached by operators in the field of platform economy with competitive relations have manifestations such as the use of data, algorithms, and platform rules to achieve coordinated behavior.
Question 4: What are the new regulations in the "Guide" regarding the identification of coordinated behavior in the field of platform economy?
Answer: A monopoly agreement refers to an agreement, decision, or other concerted action by an operator to exclude or restrict competition.
Among them, other concerted behaviors refer to behaviors that are substantially coordinated and consistent although no agreement or decision has been made between the operators.
From the perspective of the overall framework, there is no substantial difference between the form of monopoly agreements in the field of platform economy and traditional industries, and there is consistency in judging the overall application principles.
But it needs to be particularly clear that collaborative behavior in the field of platform economy may be realized through data, algorithms, platform rules, or other methods closely related to platform economy.
In view of the complexity of the platform economy, it can be determined through direct evidence to determine the collaborative behavior of the platform economy.
If direct evidence is difficult to obtain, it is possible to determine whether the operators are aware of relevant information in accordance with the provisions of Article 6 of the Interim Regulations on Prohibition of Monopoly Agreements and indirect evidence consistent with logic to determine whether there is concerted behavior among operators.
At the same time, parallel behaviors such as price-following by relevant operators based on independent expressions of intent, or the operators can provide contrary evidence to prove that there is no concerted behavior, should not be considered as concerted behavior.
Question 5: Compared with traditional industries, what are the particularities 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" is based on the "Anti-Monopoly Law" and combined with the characteristics of the platform economy to further refine the considerations for determining that operators in the platform economy have a dominant market position.
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 "Guide" also clearly considers the duration of the market share.
Regarding the analysis of platform-related market competition, the "Guide" clarifies factors such as market development, the number and market share of existing competitors, the characteristics of platform competition, the degree of platform differences, economies of scale, potential competitors, innovation and technological changes.
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 consideration 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.
It needs to be explained that the "Guide" clarifies the specific factors to be considered for determining that operators in the field of platform economy have a dominant market position, and it is necessary to conduct specific analysis of relevant factors in the practice of law enforcement based on the situation of the case.
Question 6: Regarding issues such as "choose one" and "big data", which are frequently reflected in all aspects of society, what are the provisions of the Guidelines?
Answer: The "Guide" fully bases itself on law enforcement practices, actively responds to social concerns, and makes specific provisions for the "choice of two" and "big data" issues that have been more reflected in various aspects of society in recent years, and clarify whether relevant behaviors constitute a monopoly The criterion of 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 "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.
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. .
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.
Question 7: An important condition that constitutes an abuse of a dominant market position is that the relevant behavior is "unjustified". What specific provisions are made in the Guidelines?
Answer: According to Article 17 of the Anti-Monopoly Law, the Guide lists the characteristics of the platform economy and enumerates the implementation of lower-cost sales, refusal of transactions, restricted transactions, tie-in sales or additional unreasonable trading conditions by operators in the field of platform economy. , Differential treatment and other legitimate reasons that may exist when abusing 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.
According to the characteristics of different types of behaviors, the "Guide" specifically enumerates situations that "may have justified reasons."
For example, the "Guide" stipulates legitimate reasons for selling below cost, including common situations in commercial practices such as attracting new users and carrying out promotional activities within a reasonable period of time. Regarding the refusal of transactions, the "Guide" specifies force majeure, affecting transaction security, and The counterparty of the transaction clearly stated or actually failed to comply with fair, reasonable and non-discriminatory platform rules, etc., which may constitute justified reasons. Regarding restricted transactions, the "Guide" clearly indicates that possible justified reasons include protecting the interests of counterparties and consumers, protecting intellectual property rights, It is necessary for commercial secrets or data security and for maintaining a reasonable business model; regarding tying or additional unreasonable transaction conditions and differential treatment, the "Guide" points out that compliance with legitimate industry practices and transaction habits may constitute legitimate reasons.
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.
The "legitimate reasons" listed in the "Guide" fully consider the possible commercial rationality of the operator's behavior in the field of platform economy in business practice, and aim to protect the normal business behavior of the operator and give the operator more clear behavioral guidance.
In the practice of law enforcement, relevant “justified reasons” should be proposed by the operator and provided with evidence to prove it.
Question 8: To determine whether the concentration of operators in the platform field needs to be declared, are there any issues that require special attention?
Answer: The concentration of operators in the platform economy field is subject to the same declaration requirements as the concentration of operators in other fields, that is, if the concentration of operators constitutes and meets the reporting standards, they should report to the Anti-monopoly Law Enforcement Agency of the State Council in advance.
It should be noted that the State Administration for Market Regulation has repeatedly emphasized that concentration of undertakings involving agreement control also falls within the scope of examination of concentration of undertakings, and the "Guide" clarifies this again.
Another issue that needs attention is how to calculate the turnover of participating operators.
Similar to the concentration of operators in other fields, the turnover of operators in the platform economy includes income from selling goods and providing services.
At the same time, taking into account the particularity of the platform economy, the "Guide" also clearly stipulates that the calculation of turnover may be different according to industry practices, charging methods, business models, and the role of platform operators.
For platform operators who only provide information matching, charge commissions and other service fees, they can calculate their turnover based on the service fees charged by the platform and other platform income; if the platform operators participate in market competition on the platform side or play a leading role, they can also Calculate the transaction amount involved in the platform.
In general, the "Guide" provides a clearer interpretation of the concentration declaration standards for operators, which is helpful for operators in the platform economy to determine whether relevant concentration behaviors need to be reported, and further reduce the legal risks of operators' illegal implementation of concentration.
Question 9: Under what circumstances will the Anti-monopoly Law Enforcement Agency of the State Council conduct active investigations on the concentration of undertakings that do not meet the reporting standards?
Answer: According to Article 4 of the "Provisions of the State Council on the Standards for Declaration of Concentration of Undertakings", 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 , It should be investigated according to law.
The main reason for making this provision is that my country adopts turnover as the reporting standard. Some operators have low turnover due to factors such as business model, early investment, development stage, etc. However, the concentration of operators involved may have a greater impact on market competition. The big impact requires review by the State Council’s anti-monopoly law enforcement agency to prevent the elimination and restriction of relevant market competition.
The concentration of operators in the field of platform economy may be more prone to this situation due to the characteristics of new business formats and new models, or involving start-ups and emerging platforms.
According to the above regulations, the State Council’s Anti-Monopoly Law Enforcement Agency will investigate such concentration of undertakings in accordance with the law when “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 "Interim Provisions on the Review of Concentration of Business Operators" further clarified "to collect facts and evidence in accordance with these provisions and conduct investigations", and enhance the operability of the above-mentioned provisions.
At the same time, the "Guide" provides guidance on the types of operator concentration in the platform economy that the State Council’s anti-monopoly law enforcement agency focuses on, including those who participate in the concentration as start-ups or emerging platforms, and those participating in the concentration, based on practical experience and theoretical research results. Operators adopt free or low-price models, resulting in lower turnover, higher concentration in the relevant market, and fewer competitors.
Where the above-mentioned types of concentration of operators in the platform economy field have or may have the effect of eliminating or restricting competition, although they do not meet the reporting standards, the State Council’s anti-monopoly law enforcement agency will investigate and deal with it in accordance with the law.
In addition, taking into account the complexity of the concentration of operators in the platform economy, the "Guide" clarifies that operators can proactively declare to the Anti-monopoly Law Enforcement Agency of the State Council for the concentration of operators that do not meet the reporting standards to avoid relevant legal risks.
Question 10: What are the main factors to consider when the Anti-monopoly Law Enforcement Agency of the State Council reviews the concentration of operators in the platform economy?
Answer: The review of the concentration of operators in the platform economy field and the review of the concentration of operators in other fields are based on Article 27 of the Anti-Monopoly Law. It is necessary to consider the market share and market control power of the operators participating in the concentration, and the market concentration in the relevant market. The degree of concentration and the influence of concentration on market entry, technological progress, consumers, other relevant operators, and national economic development.
Articles 26 to 30 of the "Interim Provisions on the Review of Concentration of Business Operators" have detailed the above considerations one by one, and they are also applicable to the concentration of business operators in the platform economy.
Taking into account the characteristics of the platform economy, the "Guide" also lists the following conditions as special factors to consider, and provides clearer guidelines for operators to operate in compliance with laws and regulations.
The first is to calculate the market share of operators in traditional industries. Usually, indicators such as sales, sales volume, output, production capacity, and the number of winning projects can be used. To calculate the market share of operators in the economic field of the platform, you may need to use transaction amount, transaction volume, The number of active users, clicks, duration of use, or other indicators, and evaluate the dynamic trend of the operator’s market share over a long period of time.
The second is to assess the operator’s control over the market in the economic field of the platform. It may be necessary to consider whether the operator has exclusive rights over critical and scarce resources and the duration of the exclusive rights, the stickiness and diversification of platform users, and the operator’s The ability to process data, the ability to control data interfaces, the ability to penetrate or expand into other markets, the profitability and profitability of operators, the frequency and speed of technological innovation, the life cycle of commodities, whether there is or may be disruptive Factors such as innovation.
The third is to assess the impact of the concentration of operators in the economic field of the platform on market entry. It may be necessary to consider market access, the difficulty of operators acquiring technology, intellectual property, data, channels, users and other necessary resources and necessary facilities, and the funds required to enter the relevant market Investment scale, user conversion costs in terms of expenses, data migration, negotiation, learning, search, etc.
The fourth is to assess the impact of the concentration of operators in the platform economy on technological progress. It may be necessary to consider whether the acquisition of start-ups and emerging platforms will affect innovation and other factors.
Fifth, to assess the impact of the concentration of operators in the platform economy on consumers, it may be necessary to pay special attention to whether the operators have the ability and motivation to treat different consumer groups differently and improperly use consumer data after the concentration, thereby harming consumer interests.
In addition, the "Guide" also clearly assesses the competitive impact of the concentration of operators in the platform economy. It may also be necessary to comprehensively consider the platform's bilateral or multilateral business, as well as other businesses undertaken by the operators, and evaluate direct and indirect network externalities.
Question 11: The special chapter of the "Guide" provides provisions on the prevention of abuse of administrative power to exclude and restrict competition in accordance with the law. What are the main considerations?
Answer: Abusing administrative power to exclude and restrict competition is essentially improper administrative subject or excessive intervention in market competition, and failure to properly handle the relationship between the government and the market.
Because this kind of behavior has a certain degree of administrative compulsion, it usually seriously damages fair market competition and the legitimate rights and interests of consumers, is not conducive to the formation of an efficient, standardized and fair competition domestic unified market, and is not conducive to the decisive role of the market in resource allocation.
Therefore, while regulating the monopolistic behavior of operators, my country’s Anti-Monopoly Law also explicitly prohibits the abuse of administrative power by administrative agencies and organizations authorized by laws and regulations to manage public affairs to exclude and restrict competition.
Since the institutional reform, the anti-monopoly law enforcement agency has adhered to administration in accordance with the law, earnestly implemented the decisions and deployments of the Party Central Committee and the State Council, continued to increase enforcement of abuse of administrative power to exclude and restrict competition, and investigated and dealt with 136 cases of abuse of administrative power to exclude and restrict competition in accordance with the law to promote effective The market and the government are better integrated, resolutely maintain a unified national market, and create a fair and competitive market environment for various market entities including operators in the platform economy.
With the vigorous development of my country's platform economy, administrative agencies may implement some actions 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 and promote the sustainable and healthy development of the platform economy, it is necessary to summarize law enforcement experience in a timely manner, and set relevant provisions in the Guide to regulate the abuse of administrative power in the platform economy to exclude and restrict competition, which can improve law enforcement transparency and unify law enforcement. Standards can also provide important guidance for administrative entities and improve the certainty of transactions involving operators in the field of platform economy.
The relevant provisions of the "Guide" concerning the regulation of abuse of administrative power to exclude and restrict competition mainly include the following contents:
One is to clarify the basis for law enforcement.
The "Guide" clearly states that the basic system, regulatory principles and analytical framework of the "Anti-Monopoly Law" are also applicable to the field of platform economy.
When administrative agencies and organizations authorized by laws and regulations with the function of managing public affairs implement administrative actions involving market entities in the field of platform economy, they must strictly abide by the "Anti-Monopoly Law" and must not abuse administrative power to exclude or restrict competition.
The anti-monopoly law enforcement agency investigates the abuse of administrative power in the field of platform economy to exclude or restrict competition in accordance with the "Anti-Monopoly Law" and other laws and regulations, and can make recommendations for handling in accordance with the law.
The second is to refine behavior performance.
The "Anti-Monopoly Law" provides comparative principles on preventing the abuse of administrative power to exclude and restrict competition.
In order to better reflect the characteristics of the platform economy and provide guidance for administrative entities to exercise administrative functions in accordance with the law, the "Guide" lists the possible abuse of administrative power in the platform economy to eliminate and restrict competition, and refine the restrictions on transactions and hinder the freedom of goods. Specific manifestations of illegal activities such as circulation, restrictions on bidding, restrictions on investment, enforcement of monopolistic behavior, and formulation of regulations containing content that excludes and restrict competition, are conducive to improving the operability of the Guidelines.
The third is to focus on work connection.
To prevent and stop the abuse of administrative power to exclude and restrict competition, the examination of fair competition beforehand and the subsequent abuse of administrative power to exclude or restrict competition should be organically combined.
The fair competition review must insist on a comprehensive review, continuously improve the quality of the review, and prevent abuse of administrative power to exclude and restrict competition from the source.
Abuse of administrative power to exclude and restrict competition law enforcement must continue to increase efforts, the "fish that slipped through the net" of fair competition review, and the anti-monopoly sword are suspended, and resolutely safeguard the unified national market.
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.
Question 12: If an operator in the field of platform economy implements monopolistic behavior because of the government's abuse of administrative power to eliminate and restrict competition, should he bear corresponding legal liabilities?
Answer: If administrative agencies and organizations authorized by laws and regulations to manage public affairs abuse their administrative power in the platform economy to eliminate or restrict competition, the administrative entity must first bear the corresponding legal responsibilities, and operators in the relevant platform economy also need Take the corresponding legal responsibility.
Specifically:
First, in accordance with Article 51 of the Anti-Monopoly Law, if administrative agencies and organizations authorized by laws and regulations to manage public affairs abuse their administrative powers in the platform economy to eliminate or restrict competition, they shall bear the corresponding Legal responsibility means that higher-level authorities order corrections; directly responsible persons in charge and other directly responsible personnel shall be punished in accordance with law; anti-monopoly law enforcement agencies may propose legal treatment to relevant higher-level authorities.
Second, in accordance with Article 32, Paragraph 4 of the "Provisional Regulations on Prohibition of Monopoly Agreements", "Operators who have reached a monopoly agreement due to abuse of administrative power by administrative agencies and organizations authorized by laws and regulations to manage public affairs shall be dealt with in accordance with the provisions of the preceding paragraph. The operator can prove that the conclusion of the monopoly agreement was caused by passive compliance with the administrative order, and the punishment can be lightened or mitigated according to law." and Article 37, paragraph 3 of the "Prohibition of Abuse of Market Position" And organizations authorized by laws and regulations that have the function of managing public affairs abuse their administrative power and abuse their dominant market position, they shall be dealt with in accordance with the provisions of the preceding paragraph. The operator can prove that the abuse of market dominant position he engaged in was caused by passive compliance with the administrative order. According to the provisions of “lighter or mitigated punishment in accordance with the law”, if operators in the field of platform economy implement monopolistic behaviors, they cannot naturally be exempted from corresponding legal liabilities because of the existence of administrative monopolistic behaviors, but the operators can prove that their monopolistic behaviors are passive Those who comply with administrative orders may be given a lighter or mitigated punishment in accordance with the law.
Therefore, when operators in the platform economy field participate in administrative actions involving market entities in the platform economy field implemented by administrative agencies and organizations authorized by laws and regulations that have the function of managing public affairs, they should promptly assess the corresponding legal risks, and produce and operate in accordance with laws and regulations. Avoid violations of the Anti-Monopoly Law.