Promote the standardized, orderly, innovative and healthy development of the platform economy ——Interpretation of the Antitrust Guidelines of the Anti-Monopoly Commission of the State Council on the Platform Economy
By: Date: 2021-02-08 Categories: authoritativerelease Tags: ,
   In order to implement the decisions and deployments of the Party Central Committee and the State Council, strengthen anti-monopoly supervision in the platform economy, improve regulatory rules, guide operators in the platform economy to operate in compliance with laws and regulations, and promote The platform economy develops in an orderly, innovative and healthy manner. On the basis of summarizing our country’s practical experience in law enforcement and learning from practices of other countries (regions), in accordance with the “Anti-Monopoly Law” and other relevant laws and regulations, the Anti-Monopoly Commission of the State Council (hereinafter referred to as the Committee) formulated and issued the The Anti-Monopoly Guidelines of the Anti-Monopoly Commission of the State Council on Platform Economy” (hereinafter referred to as the”Guide”).

  1. Drafting background

  In recent years, my country’s platform economy has developed rapidly, and new business forms and new 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. effect. However, at the same time, there are increasing reports and reports on suspected monopoly issues such as operators in the field of platform economy requiring merchants to”choose one of two”, big data familiarization, 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. General Secretary Xi Jinping emphasized that good laws and good governance ensure the healthy development of new business forms and new models. The Politburo meeting held on December 11, 2020 called for strengthening anti-monopoly and preventing the disorderly expansion of capital. The Central Economic Work Conference held on December 16 will strengthen anti-monopoly and prevent the disorderly expansion of capital as one of the eight key tasks in the economic work of 2021. It requires the improvement of digital rules and the improvement of legal norms such as platform enterprise monopoly identification. Strengthen regulations, enhance supervision capabilities, and resolutely oppose monopoly behavior.

   The basic system, regulatory principles and analysis framework of my country’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 coverage, and strong professionalism, it is necessary to integrate the development status, operating characteristics and operating rules of the platform economy on the basis of the current laws, regulations, rules and guidelines. , Formulated the”Guide” to further clarify the principles of anti-monopoly law enforcement in the field of platform economy, targeted and detailed analysis ideas, and provide clearer guidelines for operators in the field of platform economy to operate in accordance with laws and regulations, strengthen the pertinence of law enforcement, and enhance the scientific nature of supervision , To promote the standardized, orderly, innovative and healthy development of the platform economy.

   2. Drafting process

  According to the work deployment of the committee, the office of the committee adheres to the guidance of Xi Jinping’s new era of socialism with Chinese characteristics, and thoroughly implements the 19th National Congress of the Party and the Second Middle School The spirit of the Third, Fourth, and Fifth Central Committees, in accordance with the requirements of law-based legislation, scientific legislation, democratic legislation, and open-door legislation, fully consider the stage and level of China’s economic development, take the protection of fair competition in the market as the starting point, and improve anti-monopoly regulatory rules The goal is to improve the effectiveness of anti-monopoly supervision, combine the summary of domestic law enforcement practices and learn from international experience, and coordinate the extensive solicitation of opinions with the reasonable adoption of opinions, and the following work has been carried out:

   (1) Carry out solid research on the subject. The Committee Office organized the evaluation of the competition situation of the platform economy industry, conducted a relatively comprehensive study on the frontier and key issues of platform economic theory and practice, and proposed the”Guide (Expert Suggestion Draft)” to provide theoretical support for the formulation of the”Guide”.

   (2) In-depth investigation and research. The Committee Office has conducted on-site surveys of operators in the field of platform economy for many times to gain in-depth understanding of the laws and characteristics of industry development. After the drafting of the first draft of the”Guide” is completed, a special symposium will be held to listen to the opinions of market players such as platform operators and platform operators, so as to effectively enhance the scientificity, effectiveness and pertinence of the”Guide”.

   (3) Make full use of international experience. Closely follow the research reports and law enforcement trends of anti-monopoly law enforcement agencies such as Europe and the United States on strengthening platform economic supervision, sort out and summarize the experience and practices of countries with mature market economies in a timely manner, accurately grasp the development trends and characteristics of international competition rules, and provide useful reference for the formulation of the Guide.

   (4) Widely absorb opinions from all parties. On November 10, 2020, the”Guide” was opened to the public on the official website of the State Administration for Market Regulation to solicit opinions from the public, and extensively solicit opinions from government departments, relevant market entities, and experts and scholars to gather consensus from multiple parties to ensure the scientific and scientific design of the system. Forward-looking.

   In January 2021, the “Guide” was formally issued after being deliberated and approved at the plenary meeting of the Anti-Monopoly Committee of the State Council.

  3. Main features of the guide

   The”Guide” is based on the status quo and characteristics of my country’s platform economy development, in-depth summary of law enforcement experience since the implementation of the”Anti-Monopoly Law”, and fully draws on the platform economy of developed countries in Europe and America The mature practice of competition rules, supported by theoretical research and empirical research, strives to build anti-monopoly regulatory rules in the field of platform economy that meet the requirements of high-quality development. Specifically, the guidelines mainly have the following characteristics:

   (1) Support innovation and development. Taking the protection of fair market competition and promoting the innovation and development of the platform economy as the starting point and foothold for the formulation of the”Guide”, we will strive to reduce market entry barriers, create an open and inclusive development environment, fully stimulate the innovation vitality and development momentum of market players, and improve my country’s platform economy Overall international competitiveness.

   (2) highlight the problem orientation. In response to the prominent competition issues in the platform economy in all aspects, clarify the basic principles, specific ideas and effective methods of anti-monopoly supervision, explore the construction of anti-monopoly law enforcement rules that conform to the laws and characteristics of platform economic development, respond to social concerns, and protect fair competition in the market , To safeguard the legitimate rights and interests of consumers.

   (3) Pay attention to the law. Fully consider the economic dynamics, systemicity and complexity of the Internet platform, deeply grasp the laws of platform economic development and anti-monopoly supervision, scientifically construct anti-monopoly supervision rules, strengthen competition analysis and legal argumentation, and improve the professionalization of anti-monopoly law enforcement. The level of standardization creates a pertinent, predictable and transparent legal system environment for the development of the platform economy.

   (4) Persevere in taking advantage of others. Fully learn from the practical practices and useful experience of developed countries in platform economies such as Europe and the United States, deeply grasp the international forward-looking trends in the field of platform economy, extensively listen to the opinions and suggestions of relevant central and local departments, enterprises, and experts and scholars, and strive to build a platform economic development stage and characteristics in my country High-level competition rules that are compatible with international rules.

  4. Main content

   The”Guide” is based on the”Anti-Monopoly Law” and emphasizes that monopolistic activities in the field of platform economy should apply the”Anti-Monopoly Law” and related supporting regulations, rules, and guidelines Etc., the release of Internet platforms is not a clear signal outside the anti-monopoly law. The”Guide” is highly compatible with the”Anti-Monopoly Law”. It consists of six chapters, including general provisions, monopoly agreements, abuse of market dominance, concentration of operators, abuse of administrative power to exclude and restrict competition, and supplementary provisions. There are 24 articles in total. The application of the”Anti-Monopoly Law” in the field has made more detailed regulations, mainly including five aspects:

   (1) General Rules. The first is to clarify the purpose and basis of the guidelines, highlight the purpose of promoting the orderly, innovative and healthy development of the platform economy, and define the relevant basic concepts involved in the Guidelines. The second is to propose that anti-monopoly law enforcement agencies should adhere to the principles of protecting fair market competition, scientifically and efficiently supervising in accordance with the law, stimulating innovation and creativity, and safeguarding the legitimate interests of all parties when conducting anti-monopoly supervision over the platform economy. Third, considering the complexity of the platform economy, a detailed explanation of the definition of relevant commodity markets and relevant geographic markets was made, emphasizing the role of relevant market definitions in various cases, and insisting that case analysis should be carried out.

   (2) Monopoly agreement. The first is to analyze the law enforcement ideas of monopoly agreements, clarify the form of monopoly agreements, and specifically explain other coordinated behaviors. The second is to combine the economic characteristics of the platform to explain the specific methods and enforcement considerations for operators to reach or implement monopoly agreements, and clarify that operators may use technical means, data, algorithms, and platform rules to reach horizontal or vertical monopoly agreements. , Expounds the analysis thinking of related cases. The third is to explain the principle of the hub and spoke agreement, and put forward the analytical thinking of the application of the”Anti-Monopoly Law” to this type of agreement. Fourth, detailed regulations have been made for the identification of operators to implement coordinated behaviors and leniency systems through data, algorithms, and platform rules.

   (3) Abuse of market dominance. The”Guide” focuses on the identification of market dominance of operators in the platform economy and the common abuse of market dominance in the platform economy. The first is to explain the common practice of anti-monopoly law enforcement for abuse of market dominance, and the analysis needs to reflect the framework of the Anti-Monopoly Law. The second is to list in detail the consideration factors for determining or presuming that the operator has a dominant market position, including the operator’s market share, relevant market competition conditions, the operator’s ability to control the market, the operator’s financial and technical conditions, and the dependence of other operators Degree, difficulty of market entry, etc. The third is to refine the manifestations of abuse of market dominance one by one, such as unfair price behavior, sales below cost, refusal to deal, restricted transaction, tying or additional unreasonable trading conditions, differential treatment, etc., and respond to the”two””Choose one”, data monopoly, big data and other hot issues of widespread concern to the society, enhance the operability and predictability of the legal system, and promote the operation of various market entities in the platform economy in compliance with laws and regulations.

   (4) Concentration of business operators. The”Guide” mainly elaborates on the particularity of operator concentration in the field of platform economy. First, in terms of reporting standards, according to industry practices, charging methods, business models, and the different roles of platform operators, different types of platform operators’ turnover calculation methods are distinguished to improve the accuracy of operators’ judging whether transactions meet the standards. At the same time, it is clear that the concentration of operators under the agreement control structure falls within the scope of anti-monopoly review. The second is to clarify the types of operator concentration involved in the platform economy that the State Council’s anti-monopoly law enforcement agency is highly concerned about, and especially emphasize that even if the above-mentioned operator concentration does not meet the reporting standards, it has or may have the effect of eliminating or restricting competition. Will be investigated and handled according to law. Third, when conducting anti-monopoly reviews on the concentration of business operators involved in the platform economy, it must be based on the provisions of Article 27 of the Anti-Monopoly Law, and fully consider the characteristics of the platform economy, in determining market share, market control, and concentration. In terms of the impact on market entry, the specific consideration factors are different from those of traditional industries. The fourth is to clarify that the concentration of operators with additional restrictive conditions can be added with structural conditions such as divestiture of assets, or with behavioral conditions such as open networks, data or platforms, or a combination of additional structural conditions and behavioral conditions. condition.

   (5) Abusing administrative power to exclude and restrict competition. The”Guide” mainly detailed the abuse of administrative power in the field of platform economy involving restricted transactions, hindering the free circulation of goods, restrictions on bidding and procurement, restrictions on investment or the establishment of branches, forcing operators to engage in monopolistic behavior, and formulating regulations containing content that excludes and restricts competition. Excluding and restricting the manifestations of competition requires that the formulation of regulations, normative documents and other policy measures involving the economic activities of market entities in the field of platform economy should be subject to fair competition review, giving full play to the decisive role of the market in resource allocation and making better use of it Government role.

The release of   ”Guide” provides scientific, effective and targeted institutional rules for strengthening anti-monopoly supervision in the field of platform economy, and helps to unify anti-monopoly law enforcement agencies Enforcement standards and enhanced law enforcement transparency are conducive to platform operators, platform operators and other market entities to deepen their understanding and understanding of the Anti-Monopoly Law, effectively prevent and reduce legal risks, and jointly create a fair competition market environment. In the next step, the State Administration for Market Supervision and Administration will be guided by Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, fully implement the spirit of the 19th National Congress of the Communist Party of China and the 2nd, 3rd, 4th, and 5th Plenary Sessions of the 19th Central Committee, and deeply grasp the platform economy Development laws and characteristics, strengthen platform economy anti-monopoly supervision, continuously improve platform economy supervision rules, strictly regulate fair and civilized law enforcement, protect fair market competition, safeguard consumers’ legitimate rights and interests, and promote the healthy development of my country’s platform economy.