"Anti-Monopoly Law" came out: IT tycoon with a sharp sword (1)

"Anti-Monopoly Law" came out: IT tycoon with a sharp sword (1)

"Anti-Monopoly Law" came out: IT tycoon with a sharp sword

Fourteen years after "Sword Grinding", China's "Anti-Monopoly Law" finally came to light, and officially entered the implementation phase from August 1. This law, called the "economic constitution", has a lofty legal position in the market economy, and its purpose is to stop illegal monopolies and unfair competition. In the IT world with many monopolies, it will set off an "anti-monopoly storm."

Microsoft, Intel, Tencent, Focus, Gome ... The list of big names in IT can be long. Whether in Europe, America, Japan, or South Korea, companies such as Microsoft and Intel have been repeatedly filed antitrust lawsuits. In China, however, they have always been smooth sailing and the strong are strong. However, with the implementation of the Anti-Monopoly Law, the situation will change, and the bigwigs will not be able to abuse market dominance for unfair competition and restrict competitors, otherwise they will be stabbed by the anti-monopoly sword.

Expert interpretation

The three types of behavior are monopolies

"I think that the" Anti-Monopoly Law "is not to oppose the monopoly enterprises themselves. As long as you monopolize, I will split you and crack down on you, but oppose their monopoly behavior. For example, a monopoly production company prohibits raw material suppliers from This kind of behavior should be cracked down by other manufacturers providing raw materials or providing high prices. "When talking about the objects restricted by the" Anti-Monopoly Law, "Qi Duojun, a professor at the Law School of Central South University, introduced.

The Anti-Monopoly Law stipulates that three kinds of behaviors are monopolistic behaviors: the operators reach a monopoly agreement; the operators abuse the market dominance; and the concentration of operators who have or may have the effect of eliminating or restricting competition.

"Monopoly agreements are easier to understand. One is that the competing companies reach an agreement with each other. For example, an enterprise that produces air conditioners, they reach an agreement and increase the price of the product at the same time. The other case is a certain company and the upstream of the industry chain or Downstream companies have reached agreements that are unfavorable to their competitors. For example, a home appliance store has reached an agreement with an air conditioner manufacturer. If the air conditioner manufacturer sells in other stores, the purchase price of the other party should not be lower than what it is, so that they have room to sell at a low price.

The concentration of operators restricting the effect of competition is to prevent a certain company from merging other companies, which greatly strengthens its own market power, and the effect of market competition will be greatly reduced, which is not conducive to the interests of other companies and consumers. "Many foreign companies need to go through the approval of anti-monopoly agencies during mergers and acquisitions. Preventing these mergers and acquisitions makes this company tend to monopolize in the industry, which is not conducive to competition."

Seven acts of abuse of market dominance

Among the three types of monopolistic behaviors, the most common is that monopolistic companies abuse their market dominance and restrict other competitors. "For example, in the air-conditioning industry, a certain company is dominant, and this company requires raw material suppliers to increase the selling price when competitors enter the raw materials, and requires sellers not to sell each other ’s products, because upstream and downstream companies in the industry chain rely on it. , So succumbed to its decision. Doing so causes competitors to survive difficultly, and consumers have fewer products to choose from. "

What are the abuses of market dominance? The "Anti-Monopoly Law" stipulates that the seven behaviors of the operator are the abuse of market dominance by the operator: selling the goods at an unfairly high price or buying the goods at an unfairly low price; without legitimate reasons, selling at a price below cost Commodities; no legitimate reason, refuse to deal with the counterparty to the transaction; no legitimate reason, restrict the counterparty to the transaction can only deal with it or only with its designated operator; there is no legitimate reason to tie up the goods, or add in the transaction Other unreasonable trading conditions; there is no justified reason for different treatment of trading counterparts with the same conditions in terms of transaction prices and other trading conditions; other behaviors that the antitrust law enforcement agency has determined to abuse market dominance. "The transaction counterpart is a legal term, which refers to the other party in the transaction."

To whom does the sword pierce?

"Looking at China's IT industry, who should the sword of the anti-monopoly law pierce?" After the anti-monopoly law passed the legislative process last year, IT critic Fang Xingdong asked in his blog. At present, Microsoft, Intel, Tencent and other bigwigs are likely to become antitrust "defendants". However, experts also pointed out that if the "Antimonopoly Law" is to be effectively implemented, it is difficult to obtain evidence, and invisible agreements will be the biggest obstacles.

Monopoly behavior 1: The operator reached a monopoly agreement

Suspected enterprise: Color TV Alliance

"Price Union" suspected of monopoly but difficult to obtain evidence

Around 2006, Gome, Suning, Yongle and other large home appliance chain stores continued to launch various forms of color TV promotions in order to attract customers to purchase. In that series of promotions, the most effective way is to cut prices directly. Faced with the constant dive in color TV prices, several domestic color TV giants can no longer sit still. In September, Konka, Hisense, Changhong, TCL, Shinco and other domestic color TV companies formed a price alliance, indicating that no matter how tough the home appliance chain enterprises are, they will not participate in the price war of loss-making sales during the “Eleventh” year, which clearly determines “ I'd rather be out of stock than let the prices of 32-inch and 37-inch LCD TVs be lower than 4999 yuan and 7999 yuan. "

However, after a week, Suning Appliance announced in Shanghai that several 32-inch and 37-inch domestic LCD TVs have exceeded the low price of 4,999 yuan and 7,999 yuan, including color TV brands in the price alliance. The Color TV Price Alliance immediately survived.

"Although it failed, the" price alliance "reached by such enterprises now seems to be suspected of reaching a monopoly agreement." Lawyer Zhang Wenjun, a partner of Hualisheng Law Firm, told reporters. In Zhang Wenjun ’s understanding, according to the “Anti-Monopoly Law”, the operator reached a monopoly agreement that is not conducive to consumers, such as collective control of prices, etc., “should be the most subjective and malicious type of monopoly in monopoly behavior, so Ranked first. "

"However, whether an enterprise's" price alliance "ultimately constitutes a monopoly also requires an objective determination." Zhang Wenjun believes that this mainly stems from two aspects. The first aspect is whether the enterprise can form control of the market through the "price alliance". "This requires multiple recognitions by industry associations and government departments." The second aspect is practical difficulties. "In actual business activities, these monopoly agreements are very difficult to obtain evidence."

Obtaining evidence is often a major difficulty in sanctioning illegal activities under the Anti-Monopoly Law. Regarding the relevant provisions of the "operator reached a monopoly agreement", FCIB (International Finance, Credit and Business Association) senior credit consultant Yang Xi bluntly told reporters: "Especially some foreign-funded enterprises operating in the Chinese market, the countries where these enterprises are registered Anti-monopoly laws have long appeared, so these companies have more experience in this area. "He further explained:" Many companies are in the form of equity to reach invisible monopoly agreements between different companies. For example, a company can By investing in other enterprises in the upstream and downstream of the industry, a monopoly advantage across the upstream and downstream is formed in the market. It is undoubtedly more difficult to obtain evidence for this monopoly behavior. "

Monopoly II: Abuse of market dominance

Suspected companies: Microsoft, Intel Tencent

Microsoft: "Defendant" has the highest voice

In June, some media reported that domestic agencies have investigated Microsoft ’s alleged market monopoly. After the “Anti-Monopoly Law” is officially implemented, Microsoft may become the first defendant.

In fact, the link between Microsoft and "antitrust" is not new. It has encountered multiple antitrust investigations in the United States and the European Union, South Korea and other countries and regions: In 1999, the United States Federal District Court ruled that Microsoft was a monopoly enterprise, and Requested that Microsoft be divided into two, and then Microsoft and the US Department of Justice reached an antitrust settlement agreement to avoid the fate of being split; in March 2004 and 2006, the EU imposed two large antitrust fines on Microsoft companies; The Korean Fair Trade Commission imposed an antitrust fine of US $ 35.43 million on Microsoft.

With the implementation of China's "Anti-Monopoly Law", a wave of anti-Microsoft monopolies has revived. In July, Blog.com organized a small seminar, which unexpectedly turned into a "fighting meeting" against Microsoft. Participants called on the government to list Microsoft as the "first defendant" of China's antitrust law.

Yongzhong Technology is a domestic Office software company. The company's general manager Cao Shen said at the meeting that Microsoft has always abused its monopoly position in China, using both technical and market monopolies to suppress domestic companies and make Chinese people bear higher prices than international ones. "If the government does not come forward, Yongzhong Technology is also ready to sue Microsoft. We are not afraid of it and are collecting relevant evidence in all aspects."

In addition to Yongzhong, many other companies also hate Microsoft and hate Microsoft's software bundling strategy. IE, media players, instant messaging tools, input methods ... Windows operating system is bundled with too much software, it is because the IE browser is bundled, which caused Netscape to collapse in the first place, so that other software manufacturers can not stand on the same Compete horizontally with Microsoft.

And countries have repeatedly determined that Microsoft has a monopolistic behavior because of software bundling. As South Korea ruled in 2006, Microsoft bundled some software in the Windows operating system and abused its dominant market position. Microsoft must provide a separate version that stripped Windows Media Player and Windows Messenger.

Ni Guangnan, an academician of the Chinese Academy of Sciences, once said that the software bundling strategy, like the "power absorbing method", occupies the innovation of others, and is the most effective means for Microsoft to crack down on competitors.

Lawyer You Yunting of Shanghai Zhonghui Law Firm also believes that Microsoft ’s alleged violation of the Anti-Monopoly Law is mainly “abuse of market dominance, excluding or restricting competition”, “the European Union imposed anti-trust penalties on Microsoft for this reason Bundling office software with the help of an operating system is suspected of abusing its dominant position in the market and implementing a monopoly in the office software industry. "

Intel: The means of entanglement is gradually decreasing

In the field of hardware, chip giant Intel is also the focus of attention after the implementation of the Anti-Monopoly Law. According to the latest report released by market research company iSuppli, Intel CPU accounted for 79.7% of global sales in the first quarter. This strength has always led people to believe that Intel has room for "abuse of dominance", and Intel's competitor AMD has always been collecting various evidence to prove that Intel has a de facto monopoly.

So in overseas markets, Intel has repeatedly become a defendant in antitrust litigation. In July of this year, the European Commission announced three new antitrust charges against Intel and expanded its antitrust investigations. The allegation involved Intel providing a generous rebate to a major European computer retailer on the condition that computers with Intel CPUs be restricted for sale; in addition, Intel also paid for a major OEM manufacturer to delay the introduction of products using AMD CPUs, and afterwards The company provides large rebates so that it can only produce and install its own CPU products.

In the domestic market, Intel has invested a lot of advertising subsidies and sales rebates. Among them, advertising subsidies mean that as long as domestic PC manufacturers place PC advertisements equipped with Intel CPUs, Intel ’s overall investment will be returned to PC manufacturers in proportion; the sales rebate is that after manufacturers purchase Intel products, Intel will press again. The proportion is returned to the manufacturer. In the fierce market competition, these returned funds have indeed helped many domestic PC manufacturers to keep profits, so that these manufacturers can buy Intel CPUs more "actively". But it is also directly suspected of "abusing market dominance".

Now, Intel has begun to make adjustments in accordance with the Anti-Monopoly Law. According to media reports, Intel ’s previous advertising subsidies and sales rebates in the Chinese market have been lowered: compared with a year ago, Intel ’s advertising subsidies to vendors have fallen from the previous highest 50% to less than 20%, and chip sales rebates Also reduced from 20% to within 5%.

Zhang Wenjun believes that, compared with "operators reached a monopoly agreement," companies with a "dominant market position" should "abuse" their advantages and become more concealed. "The agreement requires at least two companies and is more conducive to forensics. For example, companies like Intel, as long as some adjustments are made to internal work, can have a great impact on the market. It is more difficult to obtain evidence accordingly."

Tencent: Do not refuse to open

In addition to Microsoft and Intel, the domestic Internet giant Tencent is currently regarded by many as the opposite of “abuse of market dominance”. According to statistics from Analysys International, as of the end of 2007, Tencent ’s QQ market share in the domestic instant messaging (IM) market was as high as 77.9%. While gaining a dominant position in the market, Tencent insists not on large-scale interconnection with other IMs. This finally triggered Pi Ka (in the palm of his hand) on the grounds of suspected monopoly and unfair competition in 2006, requesting the court to order Tencent to stop the monopoly and unfair competition, and to publish its QQ instant communication system communication protocol that hinders interconnection within a time limit. .

However, Tencent said that it has never refused to interconnect with other companies, and has been discussing the possibility of interoperability with other companies. Currently, Tencent Mobile's QQ service will be interoperable with China Mobile's IM Fetion. This is the first case of Tencent interoperating with other IM platforms. However, the industry generally believes that this is Tencent's concession to China Mobile, otherwise the latter will likely terminate Tencent's "mobile QQ" business with mobile phones. Now, more IM service providers also hope to use the "Anti-Monopoly Law" to "force" Tencent to open up its interoperability to competitors with great strength.

"However, it is really necessary to conduct antitrust litigation, and the cost of investing in it is quite high. I am afraid that ordinary companies can't bear it." Yang Xi believes that relevant companies can inform industry associations and strive for government intervention. The government initiates such litigation.

Monopoly 3: Concentration of operators

Suspected enterprise: Focus on Gome

M & A will be restricted

In China, many companies are following a path of rapid expansion through M & A competitors, especially represented by Gome and Focus.

Since 2005, Gome's mergers and acquisitions of competitors have continued to occur: in April 2005, more than 100 million yuan was acquired in Harbin Black Swan; in August 2005, 180 million yuan was purchased in Shenzhen Yihaojia commercial equity; in December 2005, more than 100 million yuan Acquired Jiangsu Golden Sun Appliance Co., Ltd .; in November 2006, purchased Yongle at a price of 5.3 billion Hong Kong dollars, which changed the pattern of the home appliance retail market from "Three Kingdoms" to "U.S. and Soviet Union"; China Electric Appliances, in turn, accounted for more than 70% of the Beijing home appliance retail market; in December 2007, it acquired more than 100 million yuan in Shanxi Datong North Electric Appliances; in March 2008, nearly 600 million yuan in the acquisition of Shandong Sanlian Commercial Co. became the latter's largest shareholder.

The acquisition pace of Focus Media is also not slow: in October 2005, Focus Media acquired a 100% stake in the largest elevator flat media framework media in China for US $ 183 million; in January 2006, it acquired the strongest competition in the building video advertising market for US $ 325 million Opponent, Juzhong Media's 100% equity, Focus Media accounted for more than 90% of the building video advertising market; at the end of 2007, Focus Media acquired Xicheng Media for US $ 170 million, thereby monopolizing the store advertising market.

These mergers and acquisitions have occurred frequently, raising concerns in the industry whether Gome and Focus will form a monopoly. For this question, Gome and Fanzhong answered exactly the same, saying that in the home appliance retail market or outdoor advertising market, they accounted for a very small market share, and did not reach the 50% standard at all. Ji Hairong, Vice President of Focus Media, told reporters: "Although Focus Building video, store video and other markets occupy a dominant position, these are only a small part of the outdoor advertising market, and Focus has little share in the outdoor advertising market." Senior expert in the household appliance industry Luo Qingqi believes that the market share of Gome is only 15% of the entire home appliance sales market, and the standard recognized by the Anti-Monopoly Law is 50%, so there is no monopoly.

However, legal persons pointed out that even if they cannot be identified as monopoly companies, the implementation of the Anti-Monopoly Law will have an impact on the mergers and acquisitions of these companies. "One of the three principles of the" Anti-Monopoly Law "is to limit the concentration of operators who have or may have the effect of eliminating or restricting competition. This principle is not only for companies that already have a monopoly position, but also applies to other companies." Qi Duojun Professor introduction. He believes that after the implementation of the Anti-Monopoly Law, before companies acquire competitors, they must have sufficient evidence to convince the judicial and administrative departments that such acquisitions will not affect fair competition and that mergers and acquisitions can proceed.

As a detailed provision of the "Anti-Monopoly Law", the Legislative Affairs Office of the State Council recently issued the "Regulations Concerning the Declaration of Concentration of Operators (Draft for Comment)", which stipulates the standards for the declaration of mergers and acquisitions. "One of the regulations is that all operators participating in the concentration had a turnover of more than 1.7 billion yuan in China in the previous fiscal year, and at least two of them had a turnover of more than 300 million yuan in China in the previous fiscal year. For example, Gome has annual sales of about 100 billion yuan. As long as the annual sales of its acquisition target reach 300 million yuan, it must be declared. If the antitrust agency believes that mergers and acquisitions will not be conducive to market competition, it will reject this. M & A behavior. "Professor Qi Duojun said.

Special policy:

The legal operation of state-owned enterprises shall be protected

Involved companies:

Telecom operators such as China Mobile

Communication tariff will not be reduced

Before the implementation of the Anti-Monopoly Law, many people were wondering whether some market activities of China Mobile would be suspected of monopoly. Reporters also saw on some websites that many Internet users believed that the Anti-Monopoly Law would help promote domestic mobile Communication tariffs have been further reduced.

Zhang Wenjun said frankly: "China Mobile is a central enterprise in China's state-owned enterprises. Judging from the relevant provisions of the" Anti-Monopoly Law ", it may not be the primary target." The reporter saw that the "Anti-Monopoly Law" Article 7 It is stipulated in the following: "In industries where the state-owned economy controls the lifeline of the national economy and national security, and in industries where the franchise is monopolized according to law, the state shall protect the legal business activities of its operators." This should include telecommunications such as China Mobile, Central enterprises in the fields of energy and transportation.

Zhang Wenjun continued to explain that the market behavior adopted by China Mobile cannot be simply limited by monopoly, but should instead consider the positive and negative effects of its market behavior on market competition. "For example, China Mobile relies on its position in the market to uniformly build mobile communication base stations nationwide, which is much more economical than the establishment of multiple mobile communication enterprises and the construction of base stations, which is in line with the public interest at this stage. . "

Yang Xi believes that under the current global economic situation, if China does not have a few large enterprises with franchise and other advantages in the market, the interests of Chinese consumers cannot be protected, "In this case, the market is gradually opening up. Since then, a large number of overseas companies have flooded into the Chinese market. These overseas companies may not necessarily have a monopoly position in their registered countries, but their scale and advantages in China may achieve a real monopoly and even jeopardize the interests of Chinese consumers. "

"The starting point of the Anti-Monopoly Law is to crack down on monopolistic behaviors that infringe on the interests of consumers and the public. The real purpose is to allow the market to achieve fair competition, increase economic efficiency, and thus enhance national competitiveness, and ultimately better maintain consumption Interests of the public and the public. "Yang Xi feels that everyone's attitude towards central enterprises now" may be considered from the overall interests of the country. "

"Moreover, in many aspects, such as the pattern of the domestic telecommunications industry and the formulation of tariffs, China Mobile can't decide anything, but is only a passive recipient. However, after the implementation of the Anti-Monopoly Law, I think that China Mobile and other central enterprises Market behavior will be further regulated, which is also conducive to market progress. "Zhang Wenjun is also optimistic about this.

Business response

"Alien monk" is more urgent than "local monk"

In the face of the strict "Anti-Monopoly Law", the person in charge of the company can not help but be nervous. In fact, as early as last year after the passage of the Anti-Monopoly Law, many companies, especially multinational companies, began to take action: learn to understand the law, and ask how to avoid touching the red line.

Microsoft officials said that Microsoft attaches great importance to the introduction of the Anti-Monopoly Law, but he also said that Microsoft does not have a monopoly in China. The reason is that in the consumer market, due to piracy reasons, the genuine ratio can be ignored, while in the government procurement market, the government is in Under the same conditions, priority is given to purchasing domestic software, and Microsoft's market dominance has not yet formed. At the same time, Microsoft stated in an official statement, "We will continue industrial cooperation, support the government to establish a healthy environment for fair competition, and maintain market competition order."

The person in charge of Intel's legal affairs recently told the outside world that after the introduction of the "Anti-Monopoly Law", Intel's behavior will comply with its requirements. But he also said that after any new law is introduced, the company's employees will have a certain period of adaptation. During the adaptation period, there may be inconsistencies in the understanding of the law.

Gome spokesman He Yangqing said: "Gome has not touched the Anti-Monopoly Law, but will study it seriously."

At the same time, some legal experts became "sweet and sour." Professor Qi Duojun, who has long been concerned about China's antitrust legislation, has been very busy in recent times. He will train relevant departments on antitrust laws and will often receive calls from business people. "The concerns of these business people are very careful, mainly because of the abuse of market dominance and the concentration of operators. Ask me how to deal with it and how I will not be investigated and prosecuted by the Anti-Monopoly Law." Professor Qi Duojun said .

In addition to being "favored" by legal experts, law firms have also become channels for corporate professionals to seek help, and their business is busy. "Now many foreign law firms have opened antitrust businesses in their offices in China. Since August last year, their antitrust business volume has at least doubled, which is quite prosperous. It is estimated that there will be antitrust business in the second half of this year. Explosive growth. "You Yunting, Zhonghui Law Firm said.

It is understood that these consultations with legal experts or lawyers are mainly multinational companies and some domestic private companies, and the state-owned enterprises have not appeared.

Reporter's notes

A law cannot solve all problems

The Anti-Monopoly Law was finally released, which is of great significance, but we cannot hope that it will solve all problems.

First of all, the "Anti-Monopoly Law" is too abstract, lacking supporting implementation details, and the actual operability is poor. According to the original plan, more than 40 supporting rules were formulated before the "Anti-Monopoly Law" was promulgated, but no one has been promulgated at the moment, only the "Regulations on the Centralized Declaration of Operators (Draft for Comment)"

Since there are no detailed rules, even some of the provisions of the Anti-Monopoly Law cannot be clearly answered by expert lawyers. For example, in Article 13 of the Anti-Monopoly Law, there is a bottom line clause in the monopoly agreement: "Other monopoly agreements identified by the anti-monopoly law enforcement agency of the State Council". These other monopoly agreements refer to what nobody can answer. None of the terms can be explained clearly, and there are many mistakes in the actual operation.

Secondly, even if the implementation rules are released, even if a company determines that the competitor has a monopoly, it cannot immediately bring it to justice. Because the implementation cost of the "Anti-Monopoly Law" is very high, the anti-monopoly cases involving large-scale enterprises in developed countries have gone through months and months, and litigation costs have reached hundreds of millions of dollars. The EU's antitrust lawsuit against Microsoft has also gone through several years. Time-consuming and costly, it will be unbearable for domestic enterprises. The only possibility is to wait for government departments to file anti-monopoly lawsuits against monopoly enterprises. At this time, it is necessary to test the public relations of domestic enterprises. ability.

Furthermore, the limited supervisory staff is in fact difficult to monitor the business operations of the company from all directions.

The last thing to mention is that for the Anti-Monopoly Law, domestic companies do not need to be overjoyed, nor do multinational companies need to be afraid. The reason is simple. The Anti-Monopoly Law only deals with monopolistic behavior, not monopoly enterprises. Domestic companies must not assume that the Anti-Monopoly Law was introduced for multinational companies. Multinational companies need not follow market competition rules. Afraid.

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