中国《反垄断法》对垄断行为的法律适用:标志性案例分析(英文)

日期:19-06-19 来源: 作者:admin

摘要(Abstract)：

I.INTRODUCTION This article explores the three basic pillars of the Anti-Monopoly Law of China(AML),i.e.,anti-competitive agreements,abuse of a dominant position,and merger review.~1 It evaluates the administrative and judicial application of the AML in several important cases,and illustrates the general trends in its enforcement against monopolistic conduct.In addition,it sheds

关键词(KeyWords)：

基金项目(Foundation): funded by the International Postdoctoral Exchange Fellowship Program

作者(Author): 邝磊;

Email:

参考文献(References)：

1 Article 3 of the AML.The AML in fact has four basic pillars,the last one being the prohibition of abuse of administrative power to eliminate or restrict competition(administrative monopoly).However,administrative monopoly is not treated as a monopolistic conduct under the AML,and the enforcement of the AML against administrative monopoly requires sophisticated political conduct instead of legal interpretation of the substantive text to a large extent,it will therefore not be covered in this article.For comprehensive discussion of administrative monopoly in China,see Chan,Gordon Y.M.,Administrative Monopoly and the Anti-Monopoly Law:An Examination of the Debate in China,18 Journal of Contemporary China 263(2009);Wu Changqi&Liu Zhicheng,A Tiger without Teeth?Regulation of Administrative Monopoly under China's Anti-Monopoly Law,41 Review of Industrial Organization 133(2012);Xu Shiying&Zhang Baisha,Judicial and Administrative Remedies against Administrative Monopoly:Cases and Analysis,in CHINA'S ANTI-MONOPOLY LAW:THE FIRST FIVE YEARS,at 271-285(Adrian Emch&David Stallibrass eds.,Kluwer Law International,2013).
2 H.STEPHEN HARRIS,PETER WANG,ZHANG YIZHE,MARK COHEN&SEBASTIEN EVRARD,ANTI-MONOPOLY LAWAND PRACTICE IN CHINA,at 2(Oxford University Press,2011).
3 Yi Shin Tang,Lawmaking Process and Non-Governmental Stakeholders in China's Anti-Monopoly Law,36 European Competition Law Review 174(2015).
4 Id.;H.Stephen Harris,The Making of an Antitrust Law:The Pending Anti-Monopoly Law of the People's Republic of China,7Chicago Journal of International Law 169,172(2006).
5 Article 1 of the AML.
6 Id.,article 2.See section Ⅱ.A.1 below for a case example of the extraterritorial application of the AML.However,the AML does not set forth the required criteria for article 2 to be triggered by an alleged monopolistic conduct outside China;neither the AMEAs nor the courts have addressed the issue as to how the implementation of effects doctrine under the AML will be justified.Under the EU competition law,in Gencor the General Court held that the EU merger control law could be applied extraterritorially to a concentration leading to a dominant duopoly operating outside the EU since the concentration“would have had the direct and immediate effect of creating the conditions in which abuses of dominance were not only possible but economically rational…and would have had an immediate effect in the Community”.Case T-102/96 Gencor v.Commission[1999]ECR II-759,at 94-95.
7 Article 7 of the AML.
8 Id.,article 9.
9 Id.,article 45.This commitment procedure is believed to be modelled after article 9 of the Regulation 1/2003,which stipulates that if the undertakings offer commitments to meet the competition standards put forward by the Commission for the purpose of bringing the infringement,the Commission may decide to suspend the proceedings.
10 Articles 46 and 47 of the AML.
11 Id.,paragraph 2 of article 46.
12 Id.,article 50.
13 Id.,article 55.See the Rules on the Prohibition of Abuse of Intellectual Property Rights to Eliminate or Restrict Competition issued by SAIC.
14 Article 56 of the AML.
15 For detailed study on the public competition enforcement system in China,see Kuang Lei,Celebrating with a Damp Squib:China's Public Competition Enforcement,2 Journal of Antitrust Enforcement 411(2016).
16 Wang Xiaoye,Highlights of China's New Anti-Monopoly Law,75 Antitrust Law Journal 133,136(2008).However,after the seventh amendment to the German Act against Restraints of Competition in 2005,section 1 mirrors article 101 TFEU no longer makes distinction between horizontal and vertical restrictions.
17 The distinction between horizontal and vertical agreements nevertheless plays an important role under the EU Competition Law especially when block exemption regulations are considered,in which a more lenient regime for vertical than that for horizontal agreements is adopted by the Commission.Ioannis Lianos,Collusion in Vertical Regulations under Article 81 EC,45 Common Market Law Review 1027,1032(2008).
18 Article 13 of the AML.Under the EU Competition Law,vertical agreement is defined as“an agreement or concerted practice entered into two or more undertakings each of which operates…at a different level of the production or distribution chain”.Article1(1)(a),Commission Regulation(EU)No.330/2010 of 20 April 2010 on the application of article 101(3)of the TFEU to categories of vertical agreements and concerted practices,OJ L102/1 of 23.04.2010.
19 The term“undertakings”is not defined in the TFEU.In H?fner and Elser,the ECJ stated that“the concept of an undertaking encompasses every entity engaged in an economic activity,regardless of the legal status of the entity and the way in which it is financed”.Case C-41/90 Klaus H?fner and Fritz Elser v.Macrotron Gmb H[1991]ECR I-1979,para.21.In the AML,“business operator”,the AML equivalent of“undertaking”,is defined as“a natural person,legal person,or any other organization that is engaged in commodities production or operation or service provision”.Article 12 of the AML.
20 Article 14 of the AML.
21 Vincent Verouden,Vertical Agreements:Motivation and Impact,3 Competition Law and Policy 1813,1817(2008).
22 Under the AML,NDRC and SAIC share parallel jurisdiction in the enforcement against monopoly agreements and abuse of dominant position.NDRC enforces the AML against price-related infringements whilst SAIC handles non-price-related ones.Therefore,in the context of article 13,NDRC only applies article 13(1)and articles 13(2)-(5)are applied by SAIC.See Rules on Major Duties,Internal Organization and Staffing of NDRC and Rules on Major Duties,Internal Organization and Staffing of SAIC.
23 Case C-209/07 Competition Authority v.Beef Industry Development Society Ltd and Barry Brothers(BIDS)[2008]ECR I-8637,paras.16-17.
24 During the drafting of the AML,the American Bar Association once recommended that the AML should adopt an appreciability test usually found in advanced competition regimes and only prohibits monopolistic conducts that eliminated or substantially restricted competition.However,this recommendation was not accepted.See ABA,JOINT SUBMISSION OF THE AMERICAN BARASSOCIATION'S SECTIONS OF ANTITRUST LAW AND INTERNATIONAL LAW AND PRACTICE ON THE PROPOSEDANTI-MONOPOLY LAW OF THE PEOPLE'S REPUBLIC OF CHINA,at 8,at https://www.americanbar.org/aba.html(Last visited on September 4,2017).
25 Although no definition of“concerted behaviour”is given in the AML,it should be plausible to assume that“concerted behaviour”has the same meaning as“concerted practice”under the EU Competition Law.The ECJ defined concerted practice as“a form of coordination...which,although it has not been taken to the stage of an agreement properly so-called,knowingly substitutes practical cooperation...for the risks of competition”.Joined Cases 40 to 48/73,50/73,54 to 56/73,113 and 114/73 Co?peratieve Vereniging“Suiker Unie”UA and others v.Commission[1975]ECR I-1663,para.25.Article 6 of NDRC Rules on Anti-Price Monopoly provides that concerted behaviour may be found if there is uniformity between the pricing conduct of business operators and there has been communication of intention between business operators.
26 Articles 13(6)and 14(3)of the AML.
27 Id.,articles 15(1)-(7).Early drafts of the AML had provided an ex ante notification mechanism for anti-competitive agreements to invoke exemptions,which was very similar to previous EU practices that was removed later.See Allan Fels,China's Antimonopoly Law of 2008:An Overview,41 Review of Industrial Organization 7,18(2012).
28 Wang Xiaoye,supra note 16,136.
29 Allan Fels,supra note 27,17;and NDRC,NDRCASSERTS INCREASE OF INSTANT NOODLE SUSPECTED OF COLLUSION,at http://xwzx.ndrc.gov.cn/mtfy/zymt/200708/t20070820_154545.html(Last visited on September 4,2017).
30 Unlike SAIC,NDRC has not published all of its detailed official decisions;most of its decisions were published in the form of press release by either NDRC or press agencies of the government.Due to the fact that the quality in terms of substantive analysis of these“notices”,as opposed to formal decisions,is inferior.For example,the notice published by Price Bureau of Guizhou Province on Moutai's RPM practice contains only two paragraphs,the case analysis given below focuses on official decisions,the full text of which is available on NDRC's website.
31 Case 56/65 SociétéTechnique Minière v.Maschinenbau Ulm Gmb H[1966]ECR 235,249.
32 BIDS,supra note 23,para.17.
33 Arianna Andreangeli,From Mobile Phones to Cattle:How the Court of Justice Is Reframing the Approach to Article 101(Formerly81 EC Treaty)of the EU Treaty,34 World Competition 215,216(2011).
34 For example,Case T-374-375/94 ENS v.Commission[1998]ECR II-3141.
35 Arianna Andreangeli,supra note 33,237.
36 BIDS,supra note 23,per Advocate General Trstenjak,para.42.See Case 56/65 LTM 1966 ECR 235,at 249;and Joined Cases 29/83 and 30/83 CRAM and Rheinzink v.Commission[1984]ECR 1679,paras.25 to 28.
37 BIDS,supra note 23,para.16.
38 Id.,para.15;Arianna Andreangeli,supra note 33,236.
39 Article 13(1)of the AML.
40 Id.,article 13(2).
41 Id.,article 13(3).
42 Article 7 of the Rules on Anti-Price Monopoly issued by NDRC.
43 Articles 4-7 of the Rules on Prohibition of Monopoly Agreements issued by SAIC.
44 Since most price-related AML infringements were handled by local DRCs,the decisions of these cases were published on the web portals of relevant DRCs or local governments.However,these decisions in most cases are general and brief,and in fact they are more like press releases.
45 NDRC,12 JAPANESE AUTO PARTS AND BEARINGS MANUFACTURERS FINED CNY 1.23 BILLION BY NDRC FORPRICING MONOPOLY,at http://jjs.ndrc.gov.cn/gzdt/201408/t20140820_622756.html(Last visited on September 4,2017).The initial decision was published in the form of press release,while 12 separate official decisions were available on September 18,2014,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld(Last visited on September 4,2017).Among the manufacturers which were fined by NDRC,the four Japanese bearings manufacturers,Nachi-Fujikoshi,NSK,JTEKT and NTN were fine by European Commission in March 2014 for operating a price-fixing cartel.See EUROPEAN COMMISSION,PRESS RELEASE IP/14/280,at http://europa.eu/rapid/press-release_IP-14-280_en.htm(Last visited on September 4,2017).
46 HITACHI(2014)NDRC DECISION NO.2,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld/201409/t20140918_626086.html(Last visited on September 4,2017).
47 NACHI-FUJIKOSHI(2014)NDRC DECISION NO.10,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld/201409/t20140918_626078.html(Last visited on September 4,2017).
48 Supra note 46.
49 For example,NTN(2014)NDRC DECISION NO.12,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld/201409/t20140918_626076.html(Last visited on September 4,2017).
50 All of the 24 decisions dated from December 30,2013.
51 ZHEJIANG BRANCH OF CHINA PEOPLE'S INSURANCE CO.,LTD.(2013)NDRC DECISION NO.4,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld/201409/t20140903_624625.html(Last visited on September 4,2017).
52 Article 14 of the NDRC Procedural Rules on Administrative Enforcement against Price Monopoly,pursuant to article 46 of the AML,stipulates that any business operator voluntarily discloses the formulation of price-related monopoly agreement and provides important evidence may receive mitigated penalty or exemption.The first business operator to report is entitled to full exemption,the second may receive a reduction of no less than 50 percent in fine,and the rest may receive a reduction of no more than 50percent.It seems that there is no maximum number of business operators which can benefit from the leniency programme in a single case,as long as the self-reporting undertakings can provide“important evidence”to prove infringement.However,unlike those in the EU where full immunity will only be granted when,first,sufficient evidence is provided about an undetected cartel,full immunity under the AML can also be granted even when the application for leniency is filed after the AMEA has already initiated an investigation;and second,the monopoly agreement in question concerns vertical restraints instead of the formation of cartel.See for example,INFANT MILK FORMULA CASE(2013)NDRC,BIOSTIME AND OTHER INFANT MILK FORMULAMANUFACTURERS VIOLATED THE ANTI-MONOPOLY LAW(AUGUST 7,2013),at http://xwzx.ndrc.gov.cn/xwfb/201308/t20130807_552992.html(Last visited on September 4,2017).Moreover,in Infant Formula,regardless of article 14 of the Procedural Rules on Administrative Enforcement against Price Monopoly,three undertakings received full immunity from penalties.This approach seems to be similar to a Commission decision in October 2015 on an optical disc drives cartel,in which the Commission imposed a total fine of EUR 116 billion on 8 optical disc drive suppliers,among which three undertakings were granted full immunity.Case COMP/39639,Optical Disk Drives,Commission decision of October 21,2015.
53 ZHEJIANG BRANCH OF CHINA LIFE INSURANCE CO.,LTD.(2013)NDRC DECISION NO.8,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld/201409/t20140902_624515.html(Last visited on September 4,2017).
54 ZHEJIANG BRANCH OF CHINA PING AN INSURANCE CO.,LTD.(2013)NDRC DECISION NO.9,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld/201409/t20140902_624516.html(Last visited on September 4,2017).
55 Article 46 of the AML.
56 INSURANCE INDUSTRY ASSOCIATION OF ZHEJIANG PROVINCE(2013)NDRC DECISION NO.7,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld/201409/t20140902_624511.html(Last visited on September 4,2017).
57 NDRC,ZHEJIANG INSURANCE SECTOR FINED 110 MILLION FOR AML VIOLATION(SEPTEMBER 2,2014),at http://www.ndrc.gov.cn/xwzx/xwfb/201409/t20140902_624476.html(Last visited on September 4,2017).
58 For example,ZHEJIANG BRANCH OF MIN AN INSURANCE CO.,LTD.(2013)NDRC DECISION NO.29,at http://www.sdpc.gov.cn/fzgggz/jgjdyfld/fjgld/201409/t20140902_624537.html(Last visited on September 4,2017).
59 TAIHE LIQUEFIED PETROLEUM GAS STATION(2010)JIANGXI AIC DECISION NO.1,at http://www.saic.gov.cn/zwgk/gggs/jzzf/201307/t20130726_136750.html(Last visited on September 4,2017).
60 ANYANG USED CAR TRADING MARKET CO.,LTD.ET AL.(2012)HENAN AIC DECISION NO.1,at http://www.saic.gov.cn/zwgk/gggs/jzzf/201307/t20130726_136758.html(Last visited on September 4,2017).
61 Since the SAIC is only empowered organ to enforce the AML against non-price-related infringement,the practice of fixing commission rates was not touched upon in this case.
62 SHANGYU CONCRETE INDUSTRY ASSOCIATION ET AL.(2014)ZHEJIANG AIC DECISION NO.20,at http://www.saic.gov.cn/zwgk/gggs/jzzf/201412/t20141201_150200.html(Last visited on September 4,2017).
63 Unlike NDRC,which never provides information on evidence used in cases,the SAIC has included a list comprising the titles of all evidence collected during the investigation to support its fact-finding decision in every AML case.
64 ZHANG XIAOBO(WUXI QUARRY CARTEL)(2014)CHONGQING AIC DECISION NO.5,at http://www.saic.gov.cn/zwgk/gggs/jzzf/cfjd/201411/t20141104_149669.html(Last visited on September 4,2017).
65 Shan Jiang&Daniel Sokol,Resale Price Maintenance in China:an Economic Perspective,3(suppl 1)Journal of Antirust Enforcement 132,135(2015).
66 Article 4,Commission Regulation(EU)No.330/2010 of April 20,2010 on the application of article 101(3)of the Treaty on the Functioning of the EU to categories of vertical agreements and concerted practices.
67 Para.47,Commission Notice of May 10,2010,Guidelines on Vertical Restraints,OJ C 130 of 19.05.2010.
68 Dr.Miles Medical Co.v.John D.Park&Sons Co.,220 U.S.373(1911).
69 Leegin Creative Leather Products,Inc.v.PSKS,Inc.,127 S.Ct.2705(2007).
70 Business Electronics Corp.v.Sharp Electronics Corp.,485 U.S.717,723(1988).
71 ROBERTO PARDOLESI,MONOPOLY AGREEMENTS AND ABUSE OF DOMINANCE:SOME REMARKS ABOUT THESUBSTANTIVE RULES,in COMPETITION POLICY AND REGULATION:RECENT DEVELOPMENTS IN CHINA,THE USAND EUROPE,at 288(Michael Faure&Xinzhu Zhang eds.,Edward Elgar,2011).
72 Rainbow v.Johnson&Johnson,No.63[2012]Final Judgment Rendered by Civil Division III of Shanghai High People's Court.
73 Similarly,para.17 of Guidelines on the application of article 101(3)of the TFEU provides that the assessment of whether an agreement is restrictive of competition is necessary to take account of the likely impact of the agreement on inter-brand competition,i.e.competition between suppliers of competing brands,and on intra-brand competition,i.e.competition between distributors of the same brand.
74 Rainbow v.Johnson&Johnson,No.169[2010]Judgment of First Instance Rendered by Civil Division V of Shanghai No.1Intermediate People's Court.
75 Supra note 72.
76 Civil Procedure Law of the People's Republic of China,adopted on April 9,1991.
77 It has been widely acknowledged that the RPM will result in reduced welfare only when the undertaking implementing RPM has significant market power;in the case of a weaker market power,the RPM will not substantially undermine market equilibrium.See for example,Roberto Pardolesi,supra note 71,288.
78 Jiang Shan&Daniel Sokol,supra note 65,i146.
79 Supra note 72.This line of reasoning was also seen in Shenzhen Pest Control Association,a case concerning a price-fixing cartel,the court rejected the claim of the plaintiff on the ground,inter alia,that the plaintiff failed to prove that the horizontal agreement which fixed the minimum price that an undertaking was allowed to charge for its service had restricted market competition,therefore the agreement was not a monopoly agreement according to article 13.See Shenzhen Huierxun Science and Technology Co.,Ltd.v.Shenzhen Pest Control Association,No.155[2012]Final Judgment Rendered by Civil Division III of Guangdong High People's Court.
80 Article 8,Rules of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopolistic Conduct(Public Consultation Draft).
81 Article 44 of the AML only requires the NDRC and SAIC to publish their decisions on handling alleged monopolistic conduct,but not the legal analysis and reasoning on which the decisions are based.In addition,since most administrative penalties imposed under laws other than the AML are based on the facts of violation instead of sophisticated economic analysis,the Administrative Penalty Law of China also does not set out any stipulations in relation to the reasoning based on which the penalty is imposed.See article 39 of the Administrative Penalty Law of China.
82 It is worth reiterating that the SAIC does not have jurisdiction to apply article 14 of the AML since both articles 14(1)and(2)are price-related.Although in theory agreements formulated by undertakings in the upstream market that divide the market amongst undertakings in the downstream market as in Rainbow v.Johnson&Johnson,where Rainbow was only able to sell Johnson&Johnson's product in a specific area designated by the latter,should fall into the ambit of article 14(3)and are therefore to be prohibited by the SAIC.The SAIC has not yet concluded any case under article 14.
83 Wei Dan,Antitrust in China:An Overview of Recent Implementation of Anti-Monopoly Law,14 European Business Organization Law Review 119,130(2013).
84 It is reported that the NDRC has already taken on the task of revising the AML.LEGAL DAILY,NPC MEMBERS PROPOSE THEREVISION OF THE AML(NOVEMBER 17,2015),at http://epaper.legaldaily.com.cn/fzrb/content/20151117/Articel03008GN.htm(Last visited on September 4,2017).
85 Article 5,Rules of the Supreme People's Court on the Judicial Interpretation Work.
86 Article 6 of the AML.
87 It is not provided in the AML on what factors will be considered as a valid justification.Nonetheless,articles 12-14 of the Rules on Anti-Price Monopoly issued by NDRC provide non-exhaustive lists of valid justification.
88 Article 11 of the Rules on Anti-Price Monopoly

上一篇：传统中国官方眼中的契约词讼:对明清时代纠纷的观察(英文)

下一篇： “2017年三大刊~+作者·读者·编者恳谈会”会议综述(英文)

参考文献(References)：

友情链接