按：本文对SAIC近期公布的三个反垄断规章进行了一些评论。主要观点是SAIC在这三个规章中似乎对反垄断法做了较为扩大化的解释，例如增加经营者如果主动停止滥用市场支配地位行为，SAIC可减轻其处罚。该等规定在反垄断法中似乎并无明确依据，可能反映了SAIC将加强查处垄断行为，维护市场竞争的倾向。本网欢迎读者各抒己见，评论反垄断法、规范市场竞争和知识产权保护等热点问题的来稿。

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A Powerful SAIC Going Perhaps Beyond the AML

From Feb 1, 2011, three AML regulations promulgated by the State Administration for Industry & Commerce (the "SAIC") comes into effect, including the Provisions on Prohibiting Abuses of Dominant Market Position, Provisions on Prohibiting Monopoly Agreement, and Provisions on Prohibiting Abuses of Administrative Power to Exclude or Restrict Competition (collectively, "Regulations").  Such Regulations offer further interpretations to the Anti-Monopoly Law ("the AML") and form the legal guidance for the SAIC to exercise jurisdiction over monopolizing activities.  However, close reading of the provisions suggests that the SAIC may go beyond the lines delineated by the AML.

I            Broad Interpretation to the AML

By explaining certain AML terms in a broad scope, the SAIC appears to be prepared to fight against monopolizing activities that are not clearly specified in the AML. 

For example, Article 17 of the AML illegalizes tie-in sale and trading under unreasonable transaction terms as abuse of market dominance.  However, since neither the AML nor any published court decisions stipulate what constitutes unreasonable transaction terms, lawyers usually refer to it as the tie-in clause and tend to avoid relying on the "trading under unreasonable transaction terms" to support their argument.  The SAIC takes a bold step in Provisions on Prohibiting Abuses of Dominant Market Position by detailing that trading under reasonable transaction terms include: (1) unduly restricting contractual terms, ways of payment, methods of goods transportation and delivery etc.; (2) unduly restricting sales regions, sales targets, or after-sale service; and (3) imposing transaction terms irrelevant to the items to be traded.  Such provision considerably extends the application scope of Article 17 of the AML comparing to the established understanding among legal professions.  Since the SAIC does not publish its decisions, one cannot know for sure whether the SAIC had adopted the broad understanding before promulgation of the Regulations or drafted it in the anticipation of potential monopolizing activities.  Nevertheless, such provision should caution undertakings to carefully design their transaction terms so as not to be charged of abusing market dominant position.

Another example is Article 10 of the Provisions on Prohibiting Abuses of Dominant Market Position, which provides that when considering whether a firm possesses market dominance in a relevant market, not only the firm's but also its related party' assets and technologies shall be evaluated.  The Provisions on Prohibiting Abuses of Dominant Market Position does not define the term "related party".  Depending on different circumstances, a related party may refer to an entity that belongs to the same group with the firm under scrutiny, is an associate or joint venture of the firm, or can be significantly influenced by the firm.  Article 10 of the Provisions on Prohibiting Abuses of Dominant Market Position seems to run contrary to a literary interpretation of the AML Article 18, which stipulates that the firm's asset and technology shall be taken into consideration.  The underlining reason of such legislation probably relates to the large corporate groups frequently adopted by big companies in the current market.  Under this provision, a holding company may be regarded as having market dominant position even if it lacks the necessary facilities to manufacture the relevant products, because by controlling multiple subsidiaries the holding company can still have the final say concerning price or quantity of the goods.  Similarly, a monopolizing undertaking may not be able to escape the AML even if it transfers all intellectual property to its parent company.

       Besides the abovementioned examples, Provisions on Prohibiting Monopoly Agreement and Provisions on Prohibiting Abuses of Dominant Market Position respectively empower the SAIC to identify monopoly agreement and abuse of market dominance that are not specifically listed in the AML, thus enable SAIC to prohibit various monopolizing activities that may emerge in the constantly changing market.

II         Provisions Going Perhaps Beyond the AML

Both the Provisions on Prohibiting Monopoly Agreement and Provisions on Prohibiting Abuses of Dominant Market Position contain certain provisions that appear to lack support from the AML.  Since the SAIC must follow laws passed by the National People's Congress and its standing committee when enacting its own regulations, the authority of such provisions may be under question.

According to Article 10 of the Provisions on Prohibiting Monopoly Agreement, the SAIC may reduce or exempt punishment of an undertaking if it voluntarily terminates the monopoly agreement.  However, it cannot be inferred from the AML that legislators ever intended to exempt monopolizing business operators as long as they stop their monopolizing activities.  Such exemption is different from the exemption mentioned in Article 46 of the AML, the latter of which is to encourage parties in monopoly agreement to expose other contractual parties and thus facilitates investigation of the often confidential monopoly agreement.  Reducing or exempting punishment of an undertaking that perhaps secretly hope to slip off investigation even though it voluntarily stops monopoly seems not a promising way to help AIC discover monopoly agreement.

Furthermore, since the Provisions on Prohibiting Monopoly Agreement fails to stipulate whether the exemption applies only to fines or can be extended to illegal gains drawn from monopoly agreement, it may even encourage undertakings to hide from AIC investigation and consequently renders Article 46 of the AML useless.  Article 13 of the Provisions on Prohibiting Monopoly Agreement limits the exemption from punishment to fines if a firm engaging in monopoly agreement reports to AIC with important evidence and cooperate during investigation, yet it does not say a word about the extent of exemption if the firm voluntarily terminate the monopoly agreement but is later caught by AIC.  A possible interpretation of such drafting is that the SAIC may be willing to refrain from confiscating all the illegal gains from business operators as long as they voluntarily stop their monopolizing activities.  If this is the case, Article 46 of the AML can offer little incentive for firms to surrender themselves to AIC investigation that will almost automatically put an end to the monopoly agreement, because by terminating the agreement they can as well hope for reduced punishment in equal or greater amount.

Similar provision can be found in Article 15 of the Prohibiting Abuses of Dominant Market Position, which provides that AIC may reduce or exempt punishment of an undertaking if it voluntarily stops abusing its market dominant position.  Such provision can hardly be perceived as rooting in the AML.  In contrast to the possible exemption from punishment to a party that reports its monopoly agreement to AIC, the AML offers no liability exemption with respect to abusing of market dominant position.  The reason is that monopoly agreements are usually kept confidential and are notoriously difficult to be proved without insider information.  However, abusing market dominance can be detected by observing the firm's business operation and examining whether it falls into the categories listed in the AML. Therefore, the legality of Article 15 of the Prohibiting Abuses of Dominant Market Position is arguable at best. 

In addition to creating the possible punishment exemption for wrongdoers who voluntarily stop their monopolizing activities, the SAIC also makes slight variation to Article 46 of the AML.  Pursuant to Article 12 of the Provisions on Prohibiting Monopoly Agreement, AIC shall exempt the first firm that reports monopoly agreement to AIC, provides important evidence and cooperates extensively during investigation.  This article carves out the first informer from its followers and promises to give it full exemption from the fines compared with the possible partial exemption to its followers.  Understandably, such provision aims at encouraging competition among firms to surrender themselves to administrative investigation in a timely manner.  However, the AML only provides possible reduction or exemption from punishment to any informer - no matter it is the first or not - while the Provisions on Prohibiting Monopoly Agreement guarantees the first informer unscathed escape from administrative fines.

Moreover, Article 12 of the Provisions on Prohibiting Monopoly Agreement may have potential conflict with Article 20 of the Provisions on the Procedures for the Administrative Departments for Industry and Commerce to Investigate and Handle Cases of Monopolization Agreements and Abuse of Dominant Market Position ("Provisions on the Procedures"), which is promulgated by the SAIC on May 26, 2009.  According to the Provisions on the Procedures, organizer of monopoly agreement cannot enjoy reduction or exemption from punishment.  However, the Provisions on the Procedures fail to stipulate how to determine if an undertaking is the organizer.  For example, in a two-party monopoly agreement, if both party actively participates in negotiating, drafting and finalizing the agreement, should one be considered organizer if it first approaches the other and brings up the idea of the agreement?  What if there is no clear leader during executing and carrying out of the agreement?  Furthermore, the Provisions on Prohibiting Monopoly Agreement is silent regarding whether the firm should be exempted from fines if it is both the first to report to the AIC and the organizer.  Being the first to report, the organizer can be of considerable help for AIC to promptly see the whole picture of the monopoly agreement and estimate the harm to market competition, which seems to justify its exemption.  However, the organizer may also have caused the monopoly agreement in the first place and makes huge profit from the agreement, which makes the exemption quite disputable.  As for now, it is unclear how the SAIC intends to solve such dilemma.

III       A Powerful SAIC

Since the SAIC seldom publish its decisions, it is difficult to tell whether the Regulations signal vigorous administrative protection of market competition in the near future.  However, the Regulations certainly will become powerful weapons for the SAIC.  They explain several vital clauses in the AML, such as how to determine market dominance, what constitutes abuse of market dominant position, and the different types of monopoly agreement.  By broadly interpreting certain AML terms and adding punishment exemption mechanisms not stipulated in the AML, the SAIC prepares itself with the both the sword and carrot to prohibit abuse of market dominance and monopoly agreement.