E-commerce "choose one or the other" has a response! A number of New Deal bright sword to rectify disorderly competition

● Recently, relevant authorities of the state have intensified regulations on Internet platforms, successively issued more targeted regulatory enforcement measures and anti-monopoly guidance rules for platform enterprises. This is not accidental, sudden and isolated, but a logical development process. Relevant policies in this area are continuous and constantly improved

● The e-commerce platform implements the "choice of two". By restricting the choice of the trading party, it sets up barriers and barriers in the market to exclude competitors, which violates the market principles of free and fair competition and disrupts the normal market competition order

The essence of the socialist market economy is the rule of law economy. The rule of law economy requires that all economic activities, including those in the Internet field, should be adjusted within the scope of the law. This means that the Internet is not outside the law and must be governed by the law

This year's "double 11" and "12-12" online shopping promotion carnival activities, due to the recent national relevant functional departments frequently issued a variety of platform specification documents, has a different "taste".

For example, the Measures for The Supervision and Administration of Online Transactions (Draft for Comments) clearly states that operators of online trading platforms shall not abuse their dominant positions to interfere with the independent operation of operators within the platforms. The Guidelines on Anti-Monopoly in the Field of Platform Economy (Draft opinions) (hereinafter referred to as draft Opinions) aims to prevent and stop monopolistic behaviors in the field of platform economy, guide operators in the field of platform economy to conduct business in accordance with the law, and promote the sustained and healthy development of online economy.

These normative documents will electricity platform of controversy for a long time in the field of "alternative", the problem such as low-cost, are included in the key regulatory domain, and puts forward several cases of the abuse of dominant market position, including limited "a choice between competitive platform, exclusive dealing, trading with the designated operators, trade the other party shall not be traded with a specific operator, etc.

Regulatory policies have been introduced frequently

We will intensify the regulation of platforms

Since the rise of e-commerce economy, there have been many disputes over the "one or the other" between platforms.

From the earliest "3 q war", to jingdong v. Tmall "alternative" abuse of dominant market position case, galanz v. Tmall "alternative" abuse of dominant market position case, at the beginning of the year Meituan drops "a choice between war, to the recent Shanghai information technology co., LTD. (hereinafter referred to as love inventory) to the state administration of market supervision and management to report" Vipshop "demanded" a choice ", such as the platform between the "alternative" dispute shows a tendency to expand, tests the government ability of market regulation.

On September 11 this year, love inventory to report electric business platform to market supervision administration real-name "Vipshop" forced merchants "alternative", take advantage of market competition force the merchant shall not require merchants and love stock cooperation, offline on all products and activities in the love of inventory, serious damage to the market competition order, in violation of the relevant laws, to love inventory and causing serious economic losses, the general merchants request market supervision administration to investigate processing, safeguard the order of the industry.

Released in late October this year, the market supervision administration of the network trade supervision and management regulations (draft) ", clearly put forward the network trading platform operators, shall not abuse of a dominant position within the platform operator interference of autonomous management, may not be within the platform operator business cooperation with other platforms unreasonable unreasonable restrictions or additional conditions.

In November, the State Administration for Market Regulation released the Draft of Opinions.

"We've been looking closely at these two drafts and have been looking forward to it for a long time. It's so necessary!" Love inventory related person in charge told the Rule of law daily reporter.

To rectify the order of the Internet market economy, standardize the competition mode of the platform economy and create a fair competition environment for the e-commerce market have become the key objectives of the central government. In fact, the layout of the plan as early as a year ago has already begun.

On August 8, 2019, The General Office of the State Council issued the Guiding Opinions of The General Office of the State Council on Promoting the Standardized and Healthy Development of platform economy, which explicitly states that "unilateral signing of exclusive service provision contracts by platforms is strictly prohibited, so as to ensure fair participation of market entities related to platform economy in market competition".

Then in October that year, the State Council and announced regulations on the optimization of business environment, regulations, relevant government departments should strengthen law enforcement against monopoly and unfair competition, effectively prevent and stop the monopoly in the market economy activities, ACTS of unfair competition, and abuse of administrative power to eliminate or restrict competition behavior, create a fair competition market environment.

The antimonopoly committee expert group members, the institution of economic law under China Law Society, vice-chairman Wang Xianlin analysis, according to a recent national related departments to intensify the regulation of the Internet platform released the platform more targeted enterprises in regulatory enforcement method and guidance of antitrust rules, it is no accident, emergency and isolated, it is a logical development process, the continuity and perfecting relevant policies.

Clearly define the circumstances of the transaction

Challenges remain

It is reported that the draft of opinions has aroused strong reaction from the capital market as soon as it is published. The reason is that the draft of opinions clearly responds to several key issues concerning the regulation of platform economic monopoly behavior.

For example, the draft puts forward several cases of abusing the dominant market position, including restricting "two or one" between competitive platforms, exclusive trading, trading with designated operators, and trading counterparties shall not trade with specific operators. Such limitation may be realized through written agreement, telephone, oral agreement with the counterparty of the transaction, or through the actual setting of restrictions or obstacles in terms of platform rules, data, algorithms, technologies, etc.

Chen Qunfeng, professor of law school of Minzu University of China, pointed out that there are two situations that should be considered in the Draft. First, when the platform operator imposes restrictions through punitive measures and thus causes direct damage, it can be considered as a restricted trading behavior. Second, when platform operators implement restrictions in an incentive manner, although it may have certain positive effects, if it has obvious effects of excluding or limiting competition, it will also be considered as restricting trading behavior.

Once the first administrative monopoly lawsuit agent in Beijing dacheng law firm lawyer Wei Shi Lin, according to the analysis of current administrative rules for the administration of law enforcement operations is not clear, the efficiency is not high, especially the implementation of the anti-monopoly law current threshold is higher, if depend on the damaged the interests of the enterprise to organize, legal cost is high, difficult to make the proof, long time. The draft has detailed provisions on the steps, methods and considerations for the identification of monopolistic behaviors in the platform economy, which is conducive to the implementation of Internet anti-monopoly law enforcement.

Taking the definition of the relevant market as an example, this is the first step in identifying monopolistic behaviour. However, due to the existence of market segments, how to define the difficulties, often lead to the anti-monopoly work difficult to carry out.

In this regard, the Draft clarifies the principle of case analysis of relevant market definition, and different types of monopoly cases have different actual demands for relevant market definition. In a specific case, if the direct factual evidence is sufficient, the behavior that can only be carried out by relying on the dominant market position lasts for a long time and the damage effect is obvious. If the relevant market conditions are insufficient or very difficult to accurately define, the relevant market can be identified without defining the relevant market, and operators in the field of platform economy can be directly identified as carrying out the monopoly behavior. This will help law enforcement to skip the first hurdle and carry out antitrust enforcement better.

However, Chen qunfeng believes that although the Draft puts forward the above considerations for operators in the field of platform economy with a dominant market position to constitute a limited trading behavior, there are still some challenges in the practice of how to identify operators in the field of platform economy with a dominant market position due to the lack of clear provisions.

Expert group members, the antimonopoly commission of foreign economic and trade university law school professor Huang Yong analysis, said: "the platform is a multilateral economic symbiosis economy, before the negative evaluation for platform behavior, to fully assess the elaborating platform used by business model involves the interests of consumers, merchants and platform for their own interests, as well as social and national interests. The business strategy of the same platform and different platforms should be treated differently. The business model of the same platform may have different data, algorithms, privacy and architecture behind it. Therefore, the principles of case treatment and respect for characteristics should be followed."

The "one or the other" is getting stronger

Disturb the order of market competition

With the intensification of platform competition in e-commerce business activities, the phenomenon of "two or one" is becoming increasingly fierce, and the harm of this behavior is also becoming increasingly apparent.

According to Wang Xianlin, as limited trading activity in the field of electronic commerce, is typical of a electric business platform for the implementation of "two choose a", by limiting the option of the counterparty, set obstacles and barriers to repel the competition for the market, has violated the rule of free and fair competition market, disturbed the normal order of market competition, hinder the resources and the free flow of information, has violated the Internet open sharing of ideas.

At the same time, the electric business platform "alternative" behavior by making platform operators (partner) was forced to take, give up the opportunity to work with other platforms, directly harm the other e-commerce platform operators (competitors) and e-commerce operators trading opportunities and economic benefits, also significantly influence the choices of consumers and consumer interests. Therefore, the "one or the other" behavior ultimately damages the business environment in the field of e-commerce, damages the interests of small and medium-sized enterprises, and is not conducive to mass entrepreneurship and innovation and the standardized and healthy development of the platform economy.

Chen Qunfeng believes that the high concentration of platform economy not only brings great convenience to users, but also leads to high market access threshold, increasing difficulty for small and medium-sized enterprises to enter the market, hindering full competition in the market, destroying the operation order, damaging consumers' independent choice and social public interests.

"Once e-commerce platforms are in a monopoly position, their dominance over small and medium-sized operators will become very strong. At that time, the platform abused its market advantage to force merchants to 'choose one or the other'. Small and medium-sized merchants all dared not speak up, because they would not survive without the platform." "Said Lin Wei.

According to the complaint filed by aistock to the general administration of market regulation, more than 400 brands have been affected by Vipshop. In November alone, nearly 150 clothing brands have been affected, causing damage to the interests of merchants, shopkeepers and consumers, and disrupting the normal operation and development of the platform.

We will exercise oversight in a prudent and inclusive manner

We will ensure platform innovation and development

Interviewed experts generally welcomed the implementation of the new rules and took a cautious attitude, believing that although they can limit the disordered competition in the platform industry to some extent, they still face some challenges in implementation. To what extent the draft can solve the focal problems in practice, it still needs to be tested in the practice of individual cases. However, this does not affect the public's expectation that it can protect the fair competition in the market, safeguard the interests of consumers and the public interests.

"The Internet is like a double-edged sword. Innovation and regulation have to walk on two legs, and if innovation is encouraged at the expense of regulation, it will ultimately have a negative impact on the entire e-commerce industry." "Said Lin Wei.

Chen qunfeng believes that in the future, a problem, a standard or a concept will be further refined in practice through case by case. He expects that the regulatory authorities will issue a law enforcement case as soon as possible for reference after the implementation of the two draft opinions.

In Wang Xianlin's view, the socialist market economy is essentially an economy under the rule of law. The rule of law economy requires that all economic activities, including those in the Internet field, should be adjusted within the scope of the law. This means that the Internet is not outside the law and must be governed by the law.

Huang also suggested that once the regulatory concept of the platform model is determined, it should be further implemented and implemented through the determined regulatory policies and rules. We need to take an inclusive and prudent approach to regulation of new things such as the Internet. Under the guidance of the concept of inclusive prudential regulation, law enforcement agencies should not go beyond the boundaries of rules with uncertainty, so as not to magnify the uncertainty of rules with improper penalties, thus affecting market confidence and limiting the innovative development of platforms.

Huang Yong proposed for antitrust enforcement platform economy consideration dimension, highest method in view of "3 q case" the judgment provides some guidance, namely, the development of the Internet depends on free competition and innovation of science and technology, the Internet industry to encourage competition and innovation, competition and innovation freedom must not infringe others' legitimate rights and interests as the border. The healthy development of Internet needs orderly market environment and clear market competition rules as guarantee. Whether it belongs to the free competition and innovation encouraged by the spirit of the Internet still needs to be judged based on whether it is conducive to the establishment of an equal and fair competition order and whether it conforms to the general interests of consumers and the public interests of the society, rather than being regarded as free competition and innovation only because of some technological progress. Otherwise, anyone can arbitrarily interfere with others' technical products or services under the pretext of technological progress, thus leading to the implementation of the "law of the jungle" in the name of technological progress and innovation.