Injecting new judicial momentum into antitrust

2024-07-03

Recently, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Monopoly Civil Disputes (hereinafter referred to as the Judicial Interpretation) was released and implemented on July 1st. This judicial interpretation is based on the effective experience and practice of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Caused by Monopoly Behavior" promulgated in May 2012, and a new comprehensive judicial interpretation formulated in accordance with the revised Anti Monopoly Law of 2022, which provides systematic provisions on issues related to anti-monopoly civil litigation. Monopoly is a cancer of the market economy, which not only harms the interests of consumers, but also undermines fair competition in industries, affects economic efficiency, and hinders the healthy development of the market economy. The Anti Monopoly Law of our country provides strong legal protection for preventing and stopping monopolistic behavior, protecting fair market competition, safeguarding consumer interests and social public interests. Judiciary is an important link in the implementation of the law, and anti-monopoly civil litigation is an important channel for the implementation of the anti-monopoly law. In recent years, China's judicial organs have done a lot of work in anti-monopoly civil litigation, continuously exploring and practicing in system construction, experience accumulation, and clear rules, playing a positive role in maintaining a unified, open, healthy, and orderly market competition mechanism. At the same time, it should also be noted that there have been some new situations in the current monopolistic behavior. Especially with the promotion of information technology, the Internet platform has developed rapidly. After relying on capital "horse racing enclosure" to expand, there have been a series of problems such as restricting competition, winner takes all, and big data "killing off" to damage consumers' rights and interests. To this end, the revised anti-monopoly law in 2022 clarifies the basic rules applicable to anti-monopoly related systems in the field of platform economy, improves the vertical agreement recognition rules, and adds provisions to regulate the behavior of organizations reaching monopoly agreements and providing substantive assistance for reaching monopoly agreements; The increased punishment for monopolistic behavior has provided strong guarantees for the anti monopoly of the digital economy. The digital economy, as a new business model, has established competitive barriers through platforms, data, and algorithms, which are significantly different from the price competition logic in traditional industries. The characteristics of the digital economy, such as multilateral marketization, network externalities, high fixed costs, low conversion costs, economies of scale, and obvious cross-border competition, make the monopolistic behavior of the digital economy exhibit strong technical, covert, dynamic, and complex characteristics. This not only poses difficulties for rights holders to prove, but also poses many challenges to judicial authorities. How to accurately promote legal implementation? What definition method should be adopted when defining the relevant market? How to define the relevant commodity markets of the Internet platform? How to determine market dominance when the importance and applicability of traditional market share indicators decrease in determining market dominance? How to evaluate competitive damage in a context where it is difficult to detect, quantify, and balance it? How to overcome the difficulties of the plaintiff in providing evidence and proving, and so on, are urgent problems that need to be solved. This judicial interpretation adheres to a problem oriented approach, based on the original relevant judicial interpretations, and in accordance with the relevant content of the revised anti-monopoly law, combined with the particularity of the digital economy, actively responded to these issues. For example, in response to the difficulty in defining the relevant market, judicial interpretations generally choose to use the hypothetical monopolist testing method of price increase. In the digital economy field, competition between operators mainly manifests as non price competition such as quality, diversity, and innovation, and can choose hypothetical monopolist testing methods such as quality decrease and cost increase. At the same time, special provisions have been made on the definition of the commodity market related to the Internet platform, which will help solve the problem that it is difficult to determine the scope of the platform's commodity competition in practice. To address the issue of determining market dominance, judicial interpretations stipulate that when determining the benchmark for calculating the market share of platform operators in relevant markets, transaction amounts, number of active users, number of enterprise users, user usage time, visit volume, click through volume, number of data assets, or other indicators that can reflect the actual competitive situation of the relevant market can be used. These identification indicators are in line with the characteristics of competition in the digital economy field and can more accurately determine the market dominance of platform operators. Regarding the issue of difficult assessment of competition damage, judicial interpretations have also made it clear, which is conducive to a clear judgment of the illegality of relevant actions. In addition, judicial interpretation also strives to reduce the burden of proof and the difficulty of proof for the plaintiff from multiple levels, which helps to effectively protect the interests of the victims. In short, this judicial interpretation is a systematic summary of anti-monopoly trial rules by judicial authorities in recent years, which helps people's courts to unify judgment standards, accurately implement anti-monopoly laws, and fairly and efficiently hear monopoly civil cases. We hope that judicial interpretations can be effectively implemented, and at the same time, we also hope that judicial authorities can continuously summarize their experience, keep up with the times, and continue to explore and practice in response to the gaps and ambiguous areas in reality, injecting new momentum into the digital era of anti-monopoly, better maintaining fair competition in the market, protecting the interests of parties and the public, and promoting the healthy and prosperous development of the market economy. (Le Xin She) (Author Ye Ming, Director and Professor of the Competition Law Research Center at Southwest University of Political Science and Law)

Edit:Wangchen    Responsible editor:Chenjie

Source:http://www.legaldaily.com.cn

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