Abstract
Article 17 of the AML gives the definition of market dominance, that is when the business operator has the ability to prevent or restrict other business operators from entering the relevant market. The method to define relevant market is stated by theĀ Guide of the Anti-monopoly Committee of the State Council for the Definition of the Relevant Market, and supply and demand substitutability is the main method. However, Qihoo 360 versus Tencent case shows that the SSNIP test has its limitations in market dominance cases when the parties operate in the online market. In the 2020 draft revision of the AML, Article 21 adds that to determine whether the Internet operators have a dominant market position, factors such as network effects, economies of scale, lock-in effects and the ability to master and process related data should be considered. Another challenge is that the refusal to do business and imposing restrictive conditions on trading is often conducted by public enterprises, and the abusive behaviour could be understood as a type of administrative monopoly.
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Notes
- 1.
Guowuyuan Fanlongduan Weiyuanhui Guanyu Xiangguan Shichang Jieding De Zhinan (å½å”é¢ååęå§åä¼å ³äŗēøå ³åøåŗēå®ēęå) [Guide of the Anti-monopoly Committee of the State Council for the Definition of the Relevant Market], issued on July 6, 2009 and effective on July 6, 2009.
- 2.
Jinzhi Lanyong Shichang Zhipei Diwei Xingwei Zanxing Guiding (ē¦ę¢ę»„ēØåøåŗęÆé å°ä½č”äøŗęč”č§å®) [Interim Provisions on Prohibiting Abuse of Dominant Market Positions], Order No. 11 of the SAMR, issued on June 26, 2019 and effective on September 1, 2019.
- 3.
Article 3 of the Guide of the Anti-monopoly Committee of the State Council for the Definition of the Relevant Market: Relevant commodity market refers to a market comprised of a group or a category of commodities that are considered by consumers to have a relatively strong substitution relationship based on the characteristics, uses and prices of the commodities. These commodities have a relatively intense competitive relationship, and it may be considered as the commodity scope within which business operators compete with each other in the anti-monopoly law enforcement. Translation adopted from en.pkulaw.cn.
- 4.
Evans and Schmalensee (2014).
- 5.
Sokol and Ma (2017, p. 51).
- 6.
Article 7 of the Guide of the Anti-monopoly Committee of the State Council for the Definition of the Relevant market: No matter which method is adopted to define the relevant market, it must consider commoditiesā basic attribute of meeting the demands of consumers, and this attribute should also be taken as the basis for correcting any obvious deviation in defining the relevant market. Translation adopted from en.pkulaw.cn.
- 7.
Jinzhi Lanyong Shichang Zhipei Diwei Xingwei Zanxing Guiding (ē¦ę¢ę»„ēØåøåŗęÆé å°ä½č”äøŗęč”č§å®) [Interim Provisions on Prohibiting Abuse of Dominant Market Positions], Order No. 11 of the SAMR, issued on June 26, 2019 and effective on September 1, 2019.
- 8.
Anti-monopoly Enforcement Trends in Healthcare Industry, AnJie Law Firm, September 14, 2017.
- 9.
Cao et al. (2016).
- 10.
China Competition Bulletin, Edition 46, March 2017, at p. 5.
- 11.
Guojia Gongshang Xingzheng Guanli Ju Guanyu Jinzhi Gongyong Qiye Xianzhi Jingzheng Xingwei De Ruogan Guiding (å½å®¶å·„åč”ęæē®”ēå±å ³äŗē¦ę¢å ¬ēØä¼äøéå¶ē«äŗč”äøŗēč„å¹²č§å®) [Certain Regulations on Prohibiting Anti-competitive Practices of Public Enterprises], issued on December 24, 1993. Article 2 stated that public enterprises mentioned in these Regulations refer to the operators of public utilities, including those engaged in postal service, telecommunication, transportation, as well as the supplying of water, electricity, heat and gas, etc. Translation adopted from en.pkulaw.cn.
- 12.
Zhonggong Zhongyang Guowuyuan Guanyu Shenhua Tizhi Jizhi Gaige Jiakuai Shishi Chuangxin Qudong Fazhan Zhanlve De Ruogan Yijian (äøå ±äø央ćå½å”é¢å ³äŗę·±åä½å¶ęŗå¶ę¹é©å åæ«å®ę½åę°é©±åØåå±ęē„ēč„å¹²ęč§) [Several Opinions of the CPC Central Committee and the State Council on Deepening the Reform of Systems and Mechanisms to Accelerate the Implementation of Innovation-driven Development Strategies] issued on March 13, 2015.
- 13.
- 14.
Guojia Gongshang Zongju Guanyu Gongyong Qiye Xianzhi Jingzheng He Longduan Xingwei Tuchu Wenti De Gonggao (å½å®¶å·„åę»å±å ³äŗå ¬ēØä¼äøéå¶ē«äŗååęč”äøŗēŖåŗé®é¢ēå ¬å) [Announcement of the SAIC on Prominent Issues Concerning the Acts of Public Utility Enterprises to Restrain Competition and Practice Monopoly], issued on April 1, 2016.
- 15.
China Competition Bulletin, Edition 46, March 2017, at p. 3.
- 16.
China Competition Bulletin, Edition 42, May/June 2016, at p. 8.
- 17.
China Competition Bulletin, Edition 42, May/June 2016, at p. 8.
- 18.
Fels et al. (2015b, p. 2).
- 19.
Fels et al. (2015a, p. 4).
- 20.
Article 6 of the Interim Provisions on Prohibiting Abuse of Dominant Market Positions, translation adopted from en.pkulaw.cn.
- 21.
Article 7 of the Interim Provisions on Prohibiting Abuse of Dominant Market Positions, translation adopted from en.pkulaw.cn.
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Ma, J. (2020). Abuse of Dominant Position. In: Competition Law in China. Springer, Singapore. https://doi.org/10.1007/978-981-15-5105-5_6
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