21st Century Business Herald reporter Wang Jun, Zhang Yating, Beijing, Guangzhou, reporting
2021 is the year of strong supervision of anti-monopoly in the field of digital economy, and it is also the year of perfect regulatory norms. Relevant legislation, regulations and normative documents have been intensively introduced, gaps and loopholes in rules are gradually being filled, the digital rule of law framework has been gradually established, and the outline of anti-monopoly supervision has gradually become clear.
From the central government to the ministries, the attitude of development and supervision to regulate the digital economy is clear. As the contours of mainland anti-monopoly supervision gradually become clearer, the construction of an all-round, multi-level and three-dimensional regulatory system has accelerated.
Last year, nancai compliance technology research institute launched the "Internet Anti-monopoly and Investment Impact Report (2020)", which aroused the attention of the industry and the capital market, and a large number of Internet companies and investment institutions inquired. Recently, on the basis of last year's work, Nancai Compliance Technology Research Institute further in-depth research, combined with the trend of anti-monopoly supervision and market evolution last year, launched the "Internet Anti-monopoly and Investment Impact Report (2021)" (hereinafter referred to as the "Report"), focusing on domestic and foreign anti-monopoly legislative amendments, law enforcement supervision, typical cases, enterprise impact, and dissecting in detail the changes in regulatory water temperature and the underlying logic of the Internet in 2021, from government supervision, corporate compliance, Advice is given on aspects such as investment impact.
In view of anti-monopoly supervision, the Report recommends that regulatory authorities should increase the professionalism of law enforcement and upgrade law enforcement tools; coordinate management to avoid law enforcement competition; and strengthen the convergence of law enforcement and justice and unify standards.
Establishment of a platform governance framework in China
In 2021, laws, regulations and policy documents will be intensively introduced.
The Anti-Monopoly Guidelines on the Platform Economy are the first officially issued anti-monopoly guidelines in mainland China specifically for the platform economy. The "Report" pointed out that the guide uses a lot of ink to determine the use of data and algorithms, and algorithmic collusion needs to be vigilant. At the same time, it directly attacks the problems of "two choices one" and "big data killing", and further clarifies the need to declare the mergers and acquisitions of VIE structure enterprises.
How to allocate the corresponding rights, obligations and responsibilities for platform enterprises has become an important issue in anti-monopoly. In October 2021, the Guidelines for the Classification and Grading of Internet Platforms (Draft for Solicitation of Comments) and the Guidelines for the Implementation of Entity Responsibilities of Internet Platforms (Draft for Solicitation of Comments) were interrelated and responded to this. The "Report" analyzes the two documents on the supervision of platform classification and grading, and clarifies the responsibility for the classification and allocation of platforms and the necessity of the open ecology of super platform operators.
On October 19, 2021, the Anti-Monopoly Law (Draft Amendment) was first submitted to the 31st Session of the Standing Committee of the 13th National People's Congress for deliberation. The "Report" pointed out that it can be seen from the "Anti-Monopoly Law (Draft Amendment)" that the state is comprehensively responding to new types of restrictive competition behaviors, the "Axion Agreement" may become the focus of future attention, the key review of people's livelihood, finance, science and technology, media investment and mergers and acquisitions, and the punishment for illegal implementation of concentration of undertakings is proposed to be greatly increased.
In the trend of anti-monopoly of Internet platforms, Global is cool and hot. The "Report" also pays attention to the fact that in 2021, the United States, Germany, South Korea, Europe and other countries and regions will accelerate the process of anti-monopoly legislation and law revision. Stricter and more comprehensive regulation of monopolistic behaviors such as enterprises abusing their dominant market position and illegally implementing concentrations of undertakings is of enlightening significance to China's anti-monopoly legislation.
Anti-monopoly law enforcement forces have escalated
In 2021, a sustained anti-monopoly storm was set off around the world, and the binding norms for platform giants have become the consensus of major jurisdictions. A number of platform giants have received huge fines in 2021, and many law enforcement cases are of great typical significance, providing a reference for platform supervision.
Ali and Meituan were fined 18.228 billion yuan and 3.442 billion yuan by the State Administration for Market Regulation for implementing the monopolistic behavior of "two choices", the merger of Huya Douyu was stopped, and a number of platform giants received administrative penalties for illegal implementation of concentration of business operators... In 2021, the platform antitrust handed over a heavy "report card".
The "Report" pointed out that China's major anti-monopoly cases have been landed one after another, the regulatory attitude is decisive and severe, the law enforcement means have also shown the characteristics of penetration and diversification, and China's regulatory model has gradually been established, reflecting the rising attention of the concentration of undertakings and the many typical cases of abuse of market dominance.
The most interesting overseas is the antitrust supervision faced by the four major technology giants. Google has been punished by many countries for abusing its market dominance, Apple has been subjected to global lawsuits and investigations, Amazon has been fined 1.1 billion euros for "self-favoritism", Facebook has been regulated for its advertising business... In 2021, the enforcement of anti-monopoly regulators in many countries will regulate monopolistic behavior through various means such as investigation, litigation, and punishment.
In addition to anti-monopoly law enforcement and promoting the standardized development of the Internet field, it is necessary to establish an all-round, multi-level and three-dimensional regulatory system. The "Report" pointed out that in 2021, China will explore new solutions to platform governance, such as market supervision by holding administrative guidance meetings to guide enterprises to conduct self-examination, using administrative guidance letters to require enterprises to submit compliance reports and other means to innovate regulatory methods, industry supervision such as the Ministry of Industry and Information Technology to promote "interconnection", the Ministry of Transport to continue to promote anti-monopoly and other means to urge the Internet ecology to improve. Overseas, in the field of platform economy, there has been a wave of forward-oriented anti-monopoly regulatory transformation, such as the United States and Australia to help regulate through investigation reports, and the United Kingdom to explore law enforcement cooperation solutions to strengthen cooperation between regulators.
With the strong supervision of platform giants, it has become urgent to increase law enforcement forces, improve law enforcement pertinence, and improve law enforcement tools. According to the analysis of the Report, the establishment of China's National Anti-Monopoly Administration in 2021 shows the determination of anti-monopoly, the law enforcement system has been strengthened and improved, and the anti-monopoly law enforcement resources have been further concentrated; the competition policy and big data center of the State Administration for Market Regulation have been established, and the regulatory force has been further enriched; the expansion of the civil service establishment and the local qualification for anti-monopoly law enforcement authorization have all "added wings" to the law enforcement force. Overseas countries will accelerate the anti-monopoly segmentation of the platform economy in 2021, and strengthen the industry supervision capabilities from many parties such as regulatory organizational structure and institutional key personnel adjustment, such as a number of scholars in the United States who are known as "giant nemesis" to serve as anti-monopoly regulators, and Germany, South Korea and other regulatory departments for digital platforms have also entered this global anti-monopoly wave.
Nancai Anti-Monopoly Regulatory Recommendations:
Compared with the long law enforcement cycle and back-and-forth litigation in Western countries, mainland anti-monopoly law enforcement is faster. Intensive, regular law enforcement in 2021 demonstrates the determination to "strengthen antitrust and prevent the disorderly expansion of capital."
The Resolution of the Central Committee of the Communist Party of China on the Major Achievements and Historical Experience of the Party's Centennial Struggle (hereinafter referred to as the "Resolution") adopted by the Sixth Plenary Session of the Nineteenth Central Committee emphasizes that it is necessary to strengthen market supervision and anti-monopoly regulation, prevent the disorderly expansion of capital, maintain market order, stimulate the vitality of various market entities, especially small and medium-sized enterprises, and protect the rights and interests of workers and consumers. It can be seen that the regulation of anti-competitive behavior in the market and the promotion of anti-monopoly will continue to advance. In 2022, it is necessary to further enhance the scientific and professional nature of supervision on the "shoulders" of 2021, multi-departmental collaborative management, form a joint force, and stop and combat monopolistic behavior in the platform field according to law.
1. Increase the professionalism of law enforcement and upgrade law enforcement tools
Compared with traditional monopolistic behavior, data, technology, algorithms, etc. increase the cost of identifying and identifying new monopolistic behaviors in the field of platform economy, and law enforcement agencies should continuously improve their theoretical research, data analysis, and technical support capabilities, improve and upgrade law enforcement tools, and build a digital market risk monitoring platform to actively monitor abnormal market behavior based on artificial intelligence and big data technology. Avoid insufficient intervention and intervention errors, and promote professional, standardized, and normalized supervision.
Regulatory authorities should further improve the regulatory chain before and after the event, and promote the extension of supervision from after the fact to before the event. Improve the market competition assessment system, and promote the construction of a risk monitoring and early warning system. Provide Chinese solutions for platform supervision, promote the development of platform economic norms, and improve new advantages in national competition.
The Central Economic Work Conference proposed to set up "traffic lights" for capital. Relevant departments should better balance the pros and cons of capital, and anti-monopoly law enforcement departments must refine the rules related to capital expansion, such as the distinction between strategic matters that constitute control control and protective matters that do not constitute control in the review of concentration of undertakings, and the requirements for determining predatory pricing in abusive market dominance.
2. Collaborative management to avoid law enforcement competition
The platform economy involves bilateral or multilateral markets, provides a variety of goods or services, spans multiple industries, and has more complex business scenarios, requiring diversified supervision and joint regulation of platform competition behavior.
For platform supervision, we should be vigilant against the situation of "water control in Kowloon" caused by the intervention of multiple regulatory forces, and we should also avoid the phenomenon of shirking responsibility. The division of labor between industry supervision and anti-monopoly law enforcement should be optimized, and each regulatory force should clarify the scope of supervision and unified rules, strengthen the division of labor cooperation and coordination, accelerate the establishment of an all-round, multi-level and three-dimensional regulatory system, and provide platform enterprises with predictable and operable compliance directions, reduce market uncertainty, and stabilize the mentality of enterprises.
3. Strengthen the articulation of law enforcement and justice, and unify standards
With the rapid development of the Internet in China, anti-monopoly litigation cases in the Internet field are also increasing. Especially after anti-monopoly law enforcement has become normalized, the penalties imposed by law enforcement agencies can also be used as a support for anti-monopoly justice, and the litigation of anti-monopoly claims filed by relevant entities based on administrative punishment decisions may also show an active trend in the future.
In the future, we should strengthen the connection between anti-monopoly law enforcement and justice, and promote the unification of administrative law enforcement standards and judicial adjudication standards. Judicial organs and competition enforcement administrative departments should strengthen information exchange and mutual learning, improve the platform governance system, and jointly promote the formation of an efficient regulatory mechanism for monopoly and unfair competition.
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