The fair competition review system establishes antitrust guidelines for the platform economy or there may be adjustments...
What changes will the implementation of the new Anti-Monopoly Law bring this month?
Entering August, a series of new regulations will be implemented one after another.
Among them, the newly revised "Anti-Monopoly Law of the People's Republic of China" has come into effect on the 1st of this month.
Compared with the old version of the Anti-Monopoly Law, which has been in force for 14 years, the new law has made 36 changes in total.
From the perspective of content, such as economic anti-monopoly of digital platforms, fair competition review system to regulate administrative law enforcement, and the "safe harbor" system, all appear in the Anti-Monopoly Law for the first time.
What kind of policy signals are released behind the introduction of new words into the new law?
How will the platform economy be regulated in the future?
Under the background of establishing a unified large market, how to curb monopoly winds such as local protectionism and industrial protectionism?
With various questions, the Chengdu Commercial Daily-Red Star News reporter talked to a number of experts and anti-monopoly lawyers, and comprehensively studied the newly implemented "Anti-Monopoly Law".
A
After 14 years, why was the Anti-Monopoly Law revised?
Expert: The central government strengthens anti-monopoly and prevents disorderly expansion of capital
The Anti-Monopoly Law is known as the "economic constitution".
On June 24, 2022, the 35th meeting of the Standing Committee of the 13th National People's Congress voted and passed the decision on amending the Anti-Monopoly Law.
This is also the first major revision and implementation since my country's first "Anti-Monopoly Law" was officially implemented on August 1, 2008.
After 14 years, why should the Anti-Monopoly Law be revised?
In other words, what new forms and pressures of "monopoly" are our social economy facing?
"I personally think that the most important background for the revision of the new law comes from the policy requirements of the central government to strengthen anti-monopoly and prevent the disorderly expansion of capital." Associate Professor Wei Zhou of Wuhan University Law School pointed out in an interview with reporters that it can be said that the current capital in some fields The disorderly expansion has affected the overall situation of the entire society to achieve common prosperity and national rejuvenation.
The investigation and handling of monopolistic behavior has been the focus of policy over the years.
According to statistics released by the State Administration for Market Regulation in March this year, a total of 176 monopoly cases will be investigated and dealt with in my country in 2021, with a fine of 23.586 billion yuan.
Under the sword of law enforcement, many major typical anti-monopoly cases have also been exposed.
In fact, anti-monopoly and anti-capital disorderly expansion have become hot words in recent years.
At the Central Economic Work Conference held in December 2020, platform economy anti-monopoly and disorderly expansion of capital were included in China's economic work priorities in 2021; Anti-monopoly Guide"; in November of the same year, the State Anti-Monopoly Bureau was officially listed in the State Administration for Market Regulation...
According to Liu Junhai, a professor at the Law School of Renmin University of China and director of the Institute of Commercial Law, in the past, the relationship between social and economic norms and development, there were situations in which development was emphasized over norms, or only non-standard development was developed, and norms were developed first. Disorderly expansion and savage growth have become an important reason for the revision of antitrust laws.
Regarding the practical significance of the new law after the implementation, Liu Junhai told reporters, "I think this can better optimize a free and fair competitive ecological environment, make large enterprises stronger, and allow small and medium-sized enterprises to get a good living space."
Liu Junhai mentioned that the new "Anti-Monopoly Law" first proposed "encouraging innovation" in Article 1 of the General Provisions, which is also an important way of anti-monopoly, "To break monopoly innovation is the only way, otherwise there will be involution. "
Why did the fair competition review system enter the law?
Expert: the need to establish a unified national market
Compared with the previous "Anti-Monopoly Law", the reporter found that a total of 36 changes have been made in the new law.
Among them, in the General Provisions of Chapter 1, there are as many as 8 amendments or new additions, including: adding "encourage innovation" to the legislative purpose; adding adherence to the party's leadership and the principles of marketization and the rule of law; adding "strengthening competition policy" "Basic Status" and the fair competition review system established and gradually improved in 2016 was officially raised from the policy level to the legal level.
"Judging from the number of articles involved in this revision, the revisions of the general provisions far exceed the four major entity systems, and are second only to the legal liability part." Du Guangpu, partner of Jingshi Law Firm and director of the Anti-Monopoly Legal Affairs Department, pointed out, The many revisions in the General Provisions reflect the development achievements of my country's competition policy in recent years and the new requirements for in-depth promotion of anti-monopoly work, and also reserve institutional interfaces for further improvement of the anti-monopoly rule system in the future.
Among them, the new Article 5 of the General Provisions stipulates that the state shall establish and improve a fair competition review system: administrative organs and organizations authorized by laws and regulations with the function of managing public affairs shall conduct fair competition review when formulating regulations involving the economic activities of market entities .
In Liu Junhai's view, the entry into law of the fair competition review system is of considerable importance.
He analyzed and pointed out that: on the one hand, it can help activate the fundamental role of the market in the rational flow and optimal allocation of resources, and avoid market failure and alienation; protectionism, etc.
From the perspective of the surrounding, although the fair competition review system already existed in the past, there are still various loopholes in the review process, the locality is not unified, and local protectionism still exists. See it as a phased "victory".
In July last year, the State Administration for Market Regulation, the National Development and Reform Commission, the Ministry of Finance, and the Ministry of Commerce jointly issued the "Detailed Rules for the Implementation of the Fair Competition Review System" (hereinafter referred to as the "Detailed Rules").
In the interpretation of the document, the relevant person in charge responded that since the establishment and implementation of the system in 2016, 1.89 million documents of various policies and measures involving the economic activities of market entities have been cleared; Corrected more than 4,100 policies and measures that violated the review standards, effectively cleaned up and abolished various regulations and practices that hindered the unified national market and fair competition, effectively standardized government behavior, maintained fair market competition, and greatly stimulated the entrepreneurial and innovative vitality of market players.
"Why do we establish this system? It is because of the need to establish a unified national market." Weiwei pointed out that the government needs to conduct a fair competition review in the process of social management and economic control, and this new law emphasizes this in the general provisions. The system is a knife-edge inward, self-revolution of government regulators, which truly enables fair competition and the healthy development of industries related to industrial policy, macro-control and other related industries to achieve resonance at the same frequency.
The review standards given in the above-mentioned "Detailed Rules" also require: adhere to a national game of chess, make it clear that there is no basis for laws, administrative regulations or State Council regulations, not to set unequal market access and exit conditions, not to illegally grant preferential policies to specific operators, etc., Further break the "regional small market, small cycle", and effectively maintain the national unified large market.
C
How to "put the digital platform economy in an antitrust cage"?
Expert: Anti-monopoly guidelines for platform economy or new adjustments
It is worth mentioning that, for the healthy development of the digital economy, Article 9 has been specially added to the General Provisions - "Operators shall not use data and algorithms, technology, capital advantages and platform rules to engage in monopolistic behaviors prohibited by this Law".
In addition, Article 22 of the new law also emphasizes against operators with a dominant market position—“You must not use data and algorithms, technologies, and platform rules to engage in abuses of market dominance.”
"Paying attention to the core contradictions of digital economy anti-monopoly, I think it is a major new point of this new law." Liu Junhai analyzed that digital platforms abuse technological capital and other advantages to implement monopoly for disorderly expansion, which will largely hinder fairness. Competition order, inhibit the innovation and development of small, medium and micro enterprises, disrupt the order of fair trade in the market, and damage the legitimate rights and interests of consumers.
On June 8, the "China Anti-monopoly Law Enforcement Annual Report (2021)" issued by the State Administration for Market Regulation pointed out that among the 175 monopoly cases investigated and dealt with in 2021, the proportion of various monopoly cases from the Internet industry is as high as 74%. %, and the proportion of anti-monopoly fines and confiscations in the Internet industry reached 92%.
Under the wave of the digital economy, my country's platform economy has also entered a period of shifting gears and speeding up its development.
Liu Junhai emphasized that regulators need to make good use of the powers granted by the law to guide, regulate, regulate and punish, protect the legitimate rights and interests of consumers and small and medium-sized enterprises, take a clear-cut stand against the abuse of monopoly advantages, and resolve and restrict illegal behaviors that are not free competition. .
In a number of anti-monopoly cases related to the digital platform economy announced last year, "choose one" monopolistic behavior that restricts competition has become the first target of law enforcement agencies.
"The introduction of laws to regulate the economic anti-monopoly of digital platforms can be said to be at the right time." Liu Junhai said that behaviors such as bidding ranking by search engines on some Internet platforms and precise killing of customers on large platforms deviated from the vital interests of consumers , while the collection and sale of big data information is more likely to threaten national interests and public security.
In Liu Junhai's view, the implementation of the new "Anti-Monopoly Law" may play a role in addressing both the symptoms and the symptoms.
He explained that for the existing cases, after the new law takes effect, it needs to be incorporated into the new legal track to achieve corresponding results; for the new behaviors in the future, it can also be achieved that there are laws to abide by, and at the same time, administrative means can be used to control from the source. .
"We look forward to seeing the internet industry reverse the effect of bad money driving out good money."
From the perspective of the surrounding, the "Anti-Monopoly Guidelines on the Platform Economy Field" issued by the Anti-Monopoly Committee of the State Council in the early stage provided a basis for the anti-monopoly of the Internet industry at the practical level, but this time it was written into the law. The sexual effect will be more clear, and at the same time, it will effectively respond to the common problems in the development of the digital economy.
It is believed that the follow-up anti-monopoly guidelines for the platform economy may also be further adjusted under the guidance of the new law.
On the first day of the implementation of the new "Anti-Monopoly Law", the Supreme People's Procuratorate publicly stated on August 1 that the prosecutors will focus on the Internet, public utilities, medicine and other areas of people's livelihood security, and actively and steadily carry out public interest litigation in the anti-monopoly field. Procuratorial work.
D
"Security protocol" into law, is the enterprise safer?
Lawyer: Give clearer guidance to the business conduct of enterprises
It is worth noting that, in Article 18 of Chapter 2 of the new Monopoly Law, in addition to the specific classification of "prohibiting the operator to reach a monopoly agreement with the counterparty", it also emphasizes that if the operator can prove the relevant non-monopoly agreement. effect or non-monopoly conduct is not prohibited.
In the industry, this is called the "safe harbor" system, and this is the first time that a "safety agreement" has been written into the antitrust law.
In this regard, Du Guangpu told reporters that the introduction of the "safe harbor" system is a more in-depth and accurate reflection of the "deep water area" of anti-monopoly work.
Specifically, Du Guangpu believes that the formal establishment of the "safe harbor" system means the refinement of anti-monopoly rules, and at the same time, it also provides clearer guidelines for the business behavior of enterprises, improving the certainty of the law and the predictability of law enforcement activities. sex.
So, will the establishment of the "safe harbor" system make enterprises more "safe"?
Looking back at the process of this amendment, the "safe harbor" system first appeared publicly in the 2021 draft amendment. Article 19 stipulates that "the operator can prove that its market share in the relevant market is lower than the standard set by the anti-monopoly law enforcement agency of the State Council. The provisions of Articles 16, 17 and 18 of this Law shall not apply, unless there is evidence to prove that the agreement reached by the operators excludes or restricts competition.”
According to the draft regulations, the "safe harbor" system can be applied to horizontal and vertical monopoly agreements.
In the final decision to amend the law, the scope of application of the "safe harbor" system is limited to vertical monopoly agreements, and the specific types of applicable behaviors and standards depend on further clarification by the State Administration for Market Regulation.
In Du Guangpu's view, with the establishment and improvement of the "safe harbor" system, anti-monopoly law enforcement agencies will have a clearer basis and greater motivation to deepen law enforcement activities into vertical non-price monopoly agreements that were rarely involved before. deepwater zone".
As a result, the previously vague and theoretical risks associated with vertical non-price restraints will also become clearer and more realistic for businesses.
Chengdu Commercial Daily-Red Star News reporter Yang Yuqi Wu Yang
Intern Xi Congcong