The corporate compliance risk and response after the "Anti -Monopoly Law"

Ren Li Jiamin/Wen

The Anti -Monopoly Law (hereinafter referred to as the "Old Law") has been implemented for fourteen years since its implementation in 2008. On June 24, 2022, the call came out, and the highly anticipated new Anti -Monopoly Law (hereinafter referred to as the "New Law") was officially promulgated, which took effect on August 1, 2022. Three days later, the draft solicitation drafts of the six ministries and regulations of the six ministries and regulations were announced one after another. Standard regulations (revised draft solicitation drafts) "" Regulations for prohibiting the abuse of market dominance (draft for comments) "," stopping the abuse of administrative power exclusion, restriction of competition behavior regulations (draft for comments) "," prohibiting abuse of abuse of elimination of intellectual property rights, restrictions on restrictions, restrictions Competitive behavior regulations (draft for comments) ". The six copies of the discussion draft combine the changes in the relevant terms of the new law, and make more clear and specific provisions on the relevant provisions to improve the operability and execution of the "Anti -Monopoly Law". This article will start from the three major pillar systems of the Anti -Monopoly Law, combined with the key changes and supporting drafts of the new law, in order to provide risk guidance for corporate compliance.

1. New exemption rules of monopoly agreements, "organizational helping criminals" incorporate the scope of regulations

(1) The "safe port" rules suitable for vertical monopoly protocols are not "safe"

Article 18 Forbidden operators and transaction counterpartes to reach the following monopoly agreements:

(1) The price of fixing to the third person to the third person;

(2) The minimum price of resolding products to third parties;

(3) Other monopoly agreements identified by the State Council's antitrust law enforcement agency.

For the agreement stipulated in the first and second paragraphs of the preceding paragraph, the operator can prove that it does not have the effect of exclusion or restricting competition, and it will not be prohibited.

The operator can prove that its market share in the relevant market is lower than the standards stipulated by the State Council's antitrust law enforcement agencies and meets other conditions stipulated by the State Council's antitrust law enforcement agencies.

Article 18, paragraph 2 and 3 of the New Law adds a defense of the enterprise may never be ruled out, restricted the competitive effect, and the market share is lower than the anti -monopoly law enforcement agencies when constituting a vertical monopoly agreement. Under the circumstances of specific conditions, it can be exempted, and the industry generally believes that this is a "safe port" rule for vertical monopoly agreements. Article 15 of the "Prohibition of Monopoly Agreement (Draft for Opinions)" [1] further refine the above market share standards and other conditions. However, if it is carefully judged, the "safe port" is not safe. In the process of applicable, companies should pay attention to hidden illegal risks.

1. First, the "Security Port" rules are only targeted at vertical monopoly agreements. The horizontal monopoly agreement, that is, the monopoly agreement reached between operators with competitive relationships (including actual competitors in reality and potential competitors) is not applicable, especially the core Carter applied to the core Carter about fixed prices and segmentation markets. "Principles are not applicable to security port rules.

2. Secondly, the market share of operators and transactions in different related markets should be calculated separately. Due to the existence of upstream and downstream relationships between the operators who reached the vertical monopoly agreement, at least two or more related markets will be involved in general. When calculating the market share, the operator's share in each related market is lower than 15 %. It also needs to be prompted: 1) The main body of the calculation includes not only the operator, but also the sum of the market share of other entities that the operator can control or applies the decisive impact; To reach a monopoly agreement with several downstream companies downstream companies, the market share of all companies in the downstream market should be merged and calculated; The calculation of market share may have a decisive impact. Enterprises should fully consider the uncertainty risks defined in the relevant market when applying the "security port" rules.

3. Finally, in addition to prove that its market share is lower than the statutory standards, it also needs to prove that its behavior has not been eliminated and the competition effect is limited. According to the "Prohibition of Monopoly Agreement (Draft for Opinions)", if an enterprise is suspected of reaching other monopoly agreements, it is necessary to prove that its behavior has not been eliminated and restricted the competition effect when meeting the market share requirements. There is no clear how the enterprise proves in this regulation, but it proves that the behavior has not been eliminated and the effect of restricting competition is very difficult. It still causes a lot of obstacles to the company's applicable "security port" rules.

(2) "Organization helping criminals" also apply the penalty of the monopoly agreement

Article 19 The operator shall not organize other operators to reach a monopoly agreement or provide substantial help for other operators to reach a monopoly agreement.

The new law has added Article 19, solving the legal dilemma that has long been difficult to regulate for "helping criminals". At present, the regulatory subject of the monopoly agreement in the old law, in addition to "operators with competitive relationships" and "operators and transactions", only stipulate that industry associations shall not organize operators to implement monopoly behaviors. In practice, in addition to industry associations, there are difficulties to help the main body of other organizations that are difficult to be horizontal or vertical. Through the information and data exchanges of Internet platform companies to achieve meaning connection, related platforms may also be identified as "substantial help". Therefore, this article stipulates that the legal basis can be provided with the punishment organization and helping the subject. It is worth noting that the "organization" and "help" behaviors stipulated in Article 19 of the New Law are not limited to reaching a horizontal monopoly agreement. If it assists in reaching a vertical monopoly agreement, it also violates the provisions of Article 19. The punishment of the monopoly agreement should also be applied to the legal responsibility of "organizing helping criminals". 2. Focus on the abuse of the market -owned market dominance status

Article 22 (2) Experts with market dominance shall not use data and algorithms, algorithms, technology, and platform rules to engage in the abuse of market dominance in the preceding paragraph.

The new law has prohibited provisions on the monopoly behavior of the platform economy, especially in the aspect of the abuse of market dominance, and gives special attention. Related. Article 22 The provisions of Article 22 and the General Provisions Article 9 "The operator shall not use data and algorithms, technology, capital advantages, and platform rules to engage in monopoly behaviors prohibited in this law". The monopoly regulations rose from the guide to the legal level.

It is worth noting that the special entry in the "Regulations on the Prosperity of Market Disputes (Draft for Soliciting Opinions)" stipulates that when determining the market position of operators in the field of economic fields, it should fully consider factors such as industry competition characteristics, business models, and transaction amounts. At the same time, it also responded to the more frequent "self -treatment" behavior of Internet platform companies, prohibiting platform operators from using data, algorithms, technology, and platform rules to give priority display or sorting their own products, or use the non -use of the operator in the platform to use the non -ones of the operator in the platform. Public data development of its own products or auxiliary decision -making. [2] For example, the search engine platform uses algorithms to give priority to self -operated goods or products that choose self -operated distribution methods, or to collect business data for shopping platforms to formulate self -employed goods promotion strategies. At the same time, the "self -preferential treatment" is applicable to reasonable rules, and platform companies can argue based on fair, reasonable, discriminatory platform rules or industry practices.

At present, "self -preferential treatment" only lists two types of behaviors: priority sorting and using other operators' data information, and it is not involved in the "self -preferential treatment" behavior in other fields except the Internet platform enterprise. The training and drainage information of downstream related companies printed on the cover is exactly the same as that of the "self -preferential treatment" of the platform company. Therefore, the definition of "self -preferential treatment" in the future may continue to enrich and expand with the development of practice.

3. It is forbidden to "tip -tip" mergers and acquisitions, and introduce the "stop watch" rules

(1) The "tip -tip" mergers and acquisitions that have not reached the application standard are included in the application scope

Article 26 If an operator concentrates to the application standards prescribed by the State Council, the operator shall declare to the State Council's antitrust law enforcement agency in advance, and those who have not been declared shall not be implemented.

The operator concentrates that the application standards stipulated by the State Council have not reached the State Council, but there is evidence to prove that the operator concentrates or may have the effect of exclusion and restricting competition, and the anti -monopoly law enforcement agency of the State Council may require the operator to declare.

If an operator fails to declare in accordance with the previous two provisions, the State Council's antitrust law enforcement agencies shall investigate in accordance with the law.

The centralized declaration of operators is the biggest part of the three major systems. In the past, there were two basis for whether the operators should be concentrated in the concentrated declaration of operators, 1) whether it constitutes "concentration", that is, whether the control is changed, and 2) whether the turnover has reached the turnover standard. The optimization of the declaration standards this time not only increased the threshold of triggering the turnover of the turnover in the "State Council's Regulations on the Standards for Centralized Application Standards for Operators (Revised Draft Consultation Draft)", but also stipulated that although the application standard has not reached the application standard, it may damage the damage. In competition, antitrust law enforcement agencies can be declared by enterprises in accordance with their duties, and enterprises can be investigated if necessary. If the concentration has been implemented, law enforcement agencies may request operators to report within 180 days.

Especially in the Internet field, startups often have a high market value (or valuation), but due to the development stage or business model, its turnover is low, and it is difficult to reach the threshold of the declared turnover. In response, the "State Council's Regulations on the Standards for Centralized Application of Operators (Draft Revised Draft Consultation)" further made clear regulations on the "Unreacony Standards". In the territory of more than one -third of enterprises, their transactions should also actively declare to the Anti -Monopoly Bureau, so as to maximize the concentrated behavior of operators who may harm market competition, especially those who have been criticized. The "tip -tip" mergers and acquisitions are included in the scope of censorship to ensure competitiveness in related fields. (2) The "watch shutdown system" was introduced for the first time

Article 32 If there is one of the following circumstances, the antitrust law enforcement agency of the State Council may decide to suspend the review period of the concentrated review of the operator and inform the operator in writing:

(1) The operator fails to submit documents and materials in accordance with regulations, resulting in the review of the review;

(2) A new situation and new facts that have a significant impact on the centralized review of the operators. Until verification, the review work will not be carried out;

(3) It is necessary to further evaluate the restricted conditions of the operator's concentrated additional additional additional additions, and the operator will make a suspension request.

From the date of the suspension of the review period of the review period, the review period continues to be calculated, and the State Council's antitrust law enforcement agencies shall notify the operator in writing.

In the current law, the longest review of the operator's centralized declaration cannot exceed 180 days, but in practice, cases that need to be added with complex and difficult cases, such as additional restrictions or in -depth evaluation of competition effects. Generally, it is difficult to be difficult to be in Complete approval within the statutory trial. Due to the requirements of the censorship time limit, law enforcement agencies usually require applicants to withdraw their applications and re -submit materials. In this case, enterprises often increase the review time because they withdraw the application procedures for withdrawal.

After increasing the "stopwatch system", once legal reasons occur, law enforcement agencies can actively press the suspension key to suspend the calculation review period, and the suspension will continue to be calculated from the date of elimination. In this regard, the enterprise should pay attention to that because the current period and number of law enforcement agencies have no restrictions, they should be planned reasonably before the declaration. Reserved a reasonable declaration time to avoid being "suspended" for a long time due to insufficient preparation or frequent suspension of transactions to both parties.

Fourth, the change of punishment and the connection of the new and old law

(1) Enterprise illegal responsibility has been greatly improved, and punishment clauses have been set up on individuals

Article 56 If an operator violates the provisions of this Law and reaches and implemented a monopoly agreement, the antitrust law enforcement agency shall order to stop illegal acts, confiscate illegal income, and at the previous year's sales of more than one percent percent of more than 10 % or less If there is no sales in the previous year, the fine of less than 5 million yuan will be imposed; if the monopoly agreement reached that has not yet been implemented, a fine of less than 3 million yuan may be imposed. If the legal representative of the operator, the main person in charge, and the person in charge of the direct responsibility, have a personal responsibility for reaching a monopoly agreement, may impose a fine of less than one million yuan.

If an operator organizes other operators to reach a monopoly agreement or provides substantial help for other operators to reach a monopoly agreement, the preceding paragraph is applicable.

If an operator actively reports to the antitrust law enforcement agency to reach the relevant situation of the monopoly agreement and provide important evidence, the antitrust law enforcement agency may reduce or exempt the punishment of the operator as appropriate.

If the industry association violates the provisions of this Law, if an operator of the industry reaches a monopoly agreement, the antitrust law enforcement agency shall be ordered to make corrections, and it may impose a fine of less than 3 million yuan. If the circumstances are serious, the social group registration management authority may revoke the registration in accordance with the law.

Article 58 If an operator violates the implementation of the provisions of this Law, and if it is or may have the effects of exclusion and restricting competition, the State Council's antitrust law enforcement agency shall order The measures to be restored to the state before the concentration, and the previous annual sales were fined below 10 %; if they did not have the effect of exclusion and restricting competition, it was fined below 5 million yuan.

Compared with the old law, the amount of fines of the performers concentrated by the monopoly agreement and the concentration of operators has increased significantly. The punishment of operators who reach and implement monopoly agreements have increased the penalty limit of 5 million yuan in the previous year. ; For operators who have not implemented monopoly agreements, the fine limit is increased to 3 million yuan. It is worth noting that, in addition to increasing the legal responsibility of organizational assistants, the new law first clarifies the personal responsibilities of the monopoly agreement for the first time. If the behavior is not close, the participation has reached a monopoly agreement, and will face the personal liability penalty of less than 1 million yuan. In this regard, enterprises should do a good job of daily antitrust training for employees and executives, improve corporate compliance manuals, urge staff to talk carefully in the process of participating in industry associations and related organization activities, avoid communicating sensitive information or reaching an implied convergence. Wait.

In the centralized application part of the operator, for the more common "running" behavior in practice, the past antitrust bureau was only formed by the punishment of 500,000 yuan after investigation. The limit is increased to 5 million yuan. If the competition effect is eliminated, it may even be fined below 10 % of the annual sales of the annual annual annual. As for what is "grabbing", that is, the specific performance of "implementation concentration", in the past generally based on the change of industrial and commercial registration, etc. as a specific node for implementation concentration. In this regard, the "State Council's Provisions on the Standards for Centralized Application of Operators (Draft for Revised Draft Consultation)" made a response. Decision and management, exchanging sensitive information with other operators, substantial integration business, etc. This has made higher requirements for the company's compliance and confidentiality in the transaction process. During the due diligence of mergers and acquisitions, the disclosure of important sensitive information should be avoided.

The aggravation of the above -mentioned legal responsibility will undoubtedly help improve the illegal cost of operators, and further strengthen the intensity and effectiveness of the operator's centralized antitrust review.

Article 60 The operator shall implement a monopoly and cause losses to others shall bear civil liability in accordance with the law.

If an operator shall implement monopoly behaviors and harms the public interests of social public interests, the people's procuratorate at or above the municipal level may file a civil public interest lawsuit to the people's court in accordance with the law.

Article 63 In violation of the provisions of this Law, the plot is particularly serious, the impact is particularly bad, and causes particularly serious consequences, the anti -monopoly law enforcement agency of the State Council may in Article 56, 57, and 58 of this law. The amount of fines specified in Article 62 The amount of fines shall be determined by more than five times the amount of fines.

Article 64 If an operator is punished by administrative penalties for violation of the provisions of this Law, he records the credit records in accordance with relevant state regulations and publicized to the society.

In addition to the significant increase in fines, the new law also sets up the "expansion clause", that is, under the circumstances of serious circumstances, harsh impacts, and serious consequences, law enforcement agencies can increase the amount of fines by 2-5 times on the basis of the aforementioned basis. Not only that, this amendment also increases the credit punishment terms and the civil public interest litigation system. The illegal behavior of the enterprise will not only be included in the credit file, but also face the risk of being punished and the procuratorate filed a public interest litigation.

(2) Connection of the old and new legal liability

At present, the market regulatory authorities have not yet explained the issue of the connection between the new and old legal responsibilities. According to the "illegal acts that the illegal acts have not been discovered within two years, the" illegal acts are not discovered within two years, and no administrative penalties are given within two years "stipulated in Article 36 of the" Administrative Penalty Law ". important. We understand that if the monopoly behavior occurs during the implementation of the old law and has ended, especially if the behavior has ended for more than two years, it should be applied to the provisions of the old law. However, if monopoly occurs during the implementation of the old law and is in a continuous state, it is likely that the new law is more stringent legal liability. For example, for the organization's help to reach a monopoly agreement, and it is currently over, because the old law does not stipulate the law, we believe that the old law should be applied and no punishment; for the concentrated state of the unprepared operation of the operator, the concentrated state has continued to the new law until the new law. Effectiveness may be considered a "persistent behavior", which is punished according to the new law. The problem of connection between the old and new legal liability needs to be clarified by the law enforcement agencies or law enforcement practice of related cases.

Note:

[1] Article 15 of the "Prohibition of Monopoly Agreement (Draft for Opinions)" reached an agreement between the operator and the counterparty of the transaction.

(1) The market share of operators and transactions in the relevant market is less than 15%. The State Council's antitrust law enforcement agencies have other regulations;

(2) No opposite evidence proves its exclusion and restrictions.

The calculation of the market share of the previous operator and the counterparty of the transaction in the related market should include the sum of the market share of other entities that control or applies decisive impacts in the relevant market.

The previous control and decisive impact refer to the right or actual state of direct or indirect, individual or joint production and operation activities of other operators or major decisions that may have or may have a decisive impact on the production and operation activities of other operators.

If the transaction is relatively human, the market share in the same related market shall be consolidated and calculated.

[2] "Regulations for prohibiting the abuse of market dominance (draft for comments)" Article 20 prohibits platform operators with market dominance using data and algorithms, technology, and platform rules. When the operator competes, gives themselves the following preferential treatment:

(1) Give priority display or sorting of your own products;

(2) Use the non -public data of operators in the platform to develop their own products or assist their own decisions.

The "legitimate reason" in this article includes:

(1) Showing or sorting based on the implementation of platform rules based on fairness, reasonable, and discrimination;

(2) In line with legitimate industry practice and trading habits;

(3) Other reasons that can prove that the behavior has legitimacy.

About the Author:

Ren Li, the director of Beijing De and Heng Law Firm, director of competition and antitrust business centers, a doctor of law from the University of Foreign Economics and Trade, and a master's degree in law at the University of Tianpu. The main practice direction is the competition law and dispute resolution. In the field of competition law, Ren Li Lawyer has agreed with dozens of operators concentrated cases, price Katt cases, and abuse of market dominance cases. In addition, Lawyer Ren also provided a number of companies with competitive legal compliance training and consultation before mergers and acquisitions. Wait for legal services. In the field of dispute resolution, the areas of Ren Li Lawyer's case include trusts, energy, finance, and insurance. Some of them have been widely reported by the media. Yu Jiamin, a practicing lawyer of Beijing De and Heng Law Firm, a master's degree in economic law, law and economics of the University of Foreign Economics and Trade, has the qualifications of securities industry and funding qualifications. He has worked in a state -owned bank. The main research direction is the field of antitrust law and anti -unfair competition law and dispute resolution. He has participated in many anti -monopoly investigations, antitrust reports, and centralized reports of operators. Consultant legal service.

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