On December 30, the national video conference on market supervision was held in Beijing. Secretary of the Party group and director of the State Administration of market supervision Zhang work report. The meeting summarized and reviewed the market supervision work in 2021, and deployed the key work in 2022 from eight aspects.
The 21st Century Business Herald reporter noted that, in addition to the requirements of Solidly Promoting the implementation of major policies and focusing on the key links of “six stabilities” and “six guarantees”, this meeting focused on “deeply implementing the fair competition policy, improving the regulatory rules regulated according to law, improving the regulatory chain in advance, during and after the event, and promoting the improvement of departmental collaborative regulatory force”.
In an interview, many experts said that in the market supervision of China’s platform digital economy, there is a “multi law and multi department” supervision system . It is urgent to further clarify the boundaries between different laws and do a good job in coordination between supervision or law enforcement.
In recent years, the ability and level of market supervision departments to administer according to law have been significantly improved. In the next work, it is necessary to make the market subject operate in a scientific and perfect supervision system and “strive for progress while maintaining stability” through the prior standardization and compliance, the in-process market competition state evaluation system and risk monitoring and early warning system, and the timely correction and governance of supervision problems afterwards. From the perspective of subjective institutional coordination, we can achieve a deeper institutional connection, so as to make the supervision work more clear and achieve the effect of giving consideration to fairness and efficiency.
further promote the implementation of fair competition policy
Looking back on 2021, the platform antitrust handed over a heavy “report card”.
More anti-monopoly punches are hammered to platform enterprises. The 21st Century Business Herald reporter found that 85 cases of illegal concentration of business operators were punished in the Internet field in 2021; Ali, meituan and shipaishi were punished for abusing their dominant market position; The amount of antitrust fines this year exceeded 20 billion.
When the state Anti Monopoly Bureau was established and the anti monopoly law was revised. Supporting rules for the supervision of platform enterprises, such as the anti-monopoly guide in the field of platform economy, the guide for the classification and classification of Internet platforms (Draft for comments), the guide for the implementation of main responsibilities of Internet platforms (Draft for comments), and the regulations on the administration of network data security (Draft for comments), have been stepped up.
For the market supervision in 2022, the meeting proposed “comprehensively grasp the key points of monopoly regulation” .
What is the focus of monopoly regulation? The state anti monopoly administration, which was listed on November 18, set up three departments and Bureaus: the first Department of anti-monopoly law enforcement, the second Department of anti-monopoly law enforcement and the Department of competition policy coordination. In terms of their responsibilities, monopoly agreements in the field of digital economy, law enforcement of abuse of market dominance, and antitrust review of business concentration in the field of digital economy are listed separately. digital economy is still a key area of supervision and law enforcement.
Gan Lin, director of the state anti monopoly administration, also mentioned in a recent interview that he would strengthen competition supervision and law enforcement, further protect fair competition, and continue to regulate competition in key areas such as digital economy, scientific and technological innovation, information security and people’s livelihood security.
At the same time, “in-depth implementation of fair competition policy” was emphasized again at this meeting. Previously, this statement was mentioned in the content of the central economic work conference and Zhang Gong, director of the general administration.
“‘fair competition policy ‘is the superior concept of anti-monopoly and anti unfair competition policy and the top-level design of China’s competition law.” Deng Zhisong, senior partner of Dacheng Law Firm, said that specifically, the “implementation of fair competition policy” includes improving competition legislation, enriching competition regulators, improving regulatory efficiency, implementing fair competition review, strengthening law enforcement of monopoly acts and so on. Compared with the traditional formulation of strengthening antitrust supervision, “implementing fair competition policy” is more comprehensive and higher.
improve the regulation chain before, during and after the event
It is worth noting that this meeting proposed that the market supervision in 2022 should “improve the regulation chain before, during and after the event, promote the improvement of departmental collaborative regulation force, comprehensively grasp the key points of monopoly regulation, improve the ability of fair competition regulation, and promote high-quality development at a deeper and higher level.”
As early as March this year, the outline of the 14th five year plan for national economic and social development and the long-term objectives for 2035 (i.e. the outline of the 14th five year plan) clearly mentioned that “we should adhere to encouraging competition and opposing monopoly, improve the competition policy framework, and build a competition policy implementation mechanism covering all links before, during and after the event”.
Deng Zhisong introduced to the 21st Century Business Herald reporter that the regulation in the field of competition, especially antitrust law enforcement, belongs to a typical whole chain supervision system before, during and after the event.
Among them, it includes the concentration declaration system for M & A transactions and the fair competition review system for administrative policies. The former means that once an M & a transaction meets the reporting standards, it must be reported in advance and approved by the examination authority, otherwise the transaction shall not be implemented; The latter means that before the introduction of administrative policies, fair competition review must be carried out, which can be implemented only if it is considered that it does not have the effect of excluding and restricting competition.
During and after the event, including anti-monopoly investigation against monopoly agreement, abuse of market dominant position, failure to declare according to law, administrative monopoly and anti unfair competition investigation against unfair competition.
According to Dai Jiapeng, partner of Beijing haotianxinhe law firm, comprehensive supervision in advance, during and after the event is the goal that has been pursued in market supervision in recent years. This meeting focuses on the implementation of fair competition policy, which is a summary and affirmation of the effective practices in fair competition supervision and law enforcement in the past two years, It may also be a reflection and adjustment on the problems existing in supervision.
“in the whole chain, what needs to be strengthened is prior regulation to promote market supervision with compliance thinking.” Dai Jiapeng said that in the process of supervision, by clarifying rules in advance, setting “traffic lights” and strengthening guidance, we should try our best to eliminate “fuzzy areas”, promote enterprises to improve their internal compliance system, so that enterprises can clarify illegal boundaries and operate legally and in compliance. The regulation and compliance in advance, together with the market competition status evaluation system and risk monitoring and early warning system in the process, and the timely correction and governance of regulatory issues afterwards, make the market subject operate in a scientific and perfect regulatory system, so as to achieve “seeking progress in stability”.
promote the improvement of departmental collaborative regulation force
A number of interviewed experts said that the all-round supervision before, during and after the event has been the goal of market supervision in recent years, which is conducive to the formation of a vertical whole chain supervision mechanism.
On the other hand, “departmental collaborative regulation” puts forward higher requirements for the collaborative ability of horizontal regulatory departments. in response to how to understand the omni-directional, multi-level and three-dimensional regulatory system, Zhang Gong said to further form the regulatory force of collaborative regulation. We will promote closer integration of market access, industry supervision and competition supervision, and pay more attention to the transformation from the docking of supervision and law enforcement cases to the docking of deep-seated systems.
Huang Yong, Professor of the Law School of the University of foreign economics and trade and member of the expert advisory group of the anti monopoly Commission of the State Council, once said that China’s platform economy has a regulatory system of “co governance by multiple laws and co management by multiple departments”. The provisions in the Anti-monopoly law, the anti unfair competition law, the e-commerce law and the consumer rights and interests protection law may be applicable to business activities on specific platforms, The market supervision department, the industry and information technology department and the Internet information department each have the power of law enforcement or supervision. Therefore, it is necessary to further clarify the boundaries between different laws and do a good job in the coordination between supervision or law enforcement.
Chen Bing, director of the competition law research center of Nankai University, believes that if there is a lack of coordination and cooperation between the systems introduced by various ministries and commissions, it will cause the loss of legislative resources and the weakening of institutional authority, and make the market subjects at a loss. In recent years, it can be seen from the policy documents such as the guidelines for the classification and classification of Internet platforms and the guidelines for the implementation of main responsibilities of Internet platforms issued by the State Administration that the work of system coordination has been promoted.
At the local level, in addition to market monopoly, strengthening the identification and rectification of administrative monopoly is also an important part of improving the market supervision system. Zhang Gong previously pointed out in an interview: “market monopoly and administrative monopoly coexist at the same time, and anti-monopoly and anti unfair competition supervision urgently needs to be strengthened”, it is necessary to “further improve the fair competition review mechanism, strengthen the law enforcement of eliminating and restricting competition by abusing administrative power, and resolutely eliminate local protection and market segmentation.”
In recent years, the implementation of the anti monopoly law has been strengthened, and many local governments have investigated and dealt with a number of monopoly acts caused by the abuse of administrative power. Most of these monopoly acts are concentrated in the field of public utilities, such as natural gas, cable television, etc., and also involve industry associations with social public management functions authorized by the government:
In May this year, Anhui Market Supervision Bureau conducted an investigation into the alleged abuse of administrative power by the people’s Government of Wanhe District, Wuhu City to eliminate and restrict competition; In the same month, the Guangdong provincial market supervision and Administration Bureau filed an investigation into the alleged abuse of administrative power by the Shenzhen Municipal Bureau of transportation and the traffic police bureau of the Shenzhen Municipal Public Security Bureau to eliminate and restrict competition
At the same time, a number of local market supervision policies are also being formulated and implemented. In September, Hainan free trade port issued the third party evaluation measures for fair competition review (for Trial Implementation). The measures make it clear that policy-making organs can introduce third-party evaluation in the links such as fair competition review of the proposed policies and measures when carrying out fair competition review; In December, the white paper on fair competition review of Jiangsu Province was released. Citing the survey results, the book pointed out that the implementation effect of fair competition review is positively correlated with the degree of local economic development, and prefecture level municipal governments play an important role in promoting fair competition review.
Chen Bing believes that administrative monopoly needs to be further promoted. at present, a special chapter on administrative monopoly is set in the anti-monopoly law, and prior review is carried out through the fair competition review system to reduce the frequency of administrative monopoly. At present, the challenge of administrative monopoly focuses more on bidding and government procurement in the fields of people’s livelihood and public utilities. In the future, there may also be problems in new areas such as the opening of government data and the market-oriented allocation of government data, which deserve further attention.
(21st Century Business Herald)
