China: 公用企业不应触碰反垄断高压线

Last Updated: 3 March 2017
Article by Dentons  

公用企业不应触碰反垄断高压线

中国工商报2016-07-06 案评人:邓志松

  由于历史原因,我国公用企业占据市场优势地位的情况较为普遍,加上某些行业不够规范,导致公用企业涉嫌垄断的行为频频发生。要改变这种现状,公用企业必须增强合规意识。随着社会经济进一步发展和科学技术的革新,一些传统上自然垄断的行业也可能不再存在适用《反垄断法》豁免情形。作为公用企业,应当将自身视为市场竞争的主体之一,认真学习与《反垄断法》相关的法律法规,建立并完善企业的反垄断合规体系,切实发挥公用企业"服务为民"的根本属性。

  公用事业,指具有各企业、事业单位和居民共享的基本特征的,服务于城市生产、流通和居民生活的各项事业的总称。公用事业大多涉及国计民生,需要国家投资大量的财力、物力以维系运转,如水、电、气、电信、公共交通等。因而与之相关的公用企业几乎不可避免地先天带有国家垄断的色彩。

  随着改革开放和市场经济的飞速发展,公众对于公用企业价高质低的服务指责颇多。今年4月,国家工商总局发出在全国范围开展集中整治公用企业限制竞争和垄断行为专项执法行动的通知,部署全系统专项整治公用企业的垄断、不正当竞争行为。截至5月底,全国工商和市场监管部门已立案289件、结案59件,取得了良好的执法效果。

  本案中,当事人的主营业务是在锡林郭勒区域内提供广播电视节目传送、有线电视服务,该类服务具有较强的公共性。在同一相关市场内提供交互式网络电视服务的经营者仅有两家,其中当事人占有98.6%的市场份额,处于绝对的垄断地位。

  有线电视服务对于广大消费者来说又属于日常生活消费中的重要部分,因而消费者会对当事人提供的有线电视服务高度依赖,无法拒绝其服务过程中提出的不合理条件,处于较为弱势的地位。

  本案具有典型的公用企业滥用市场地位的特点。此前,工商部门已经查处了多件涉及公共事业领域的垄断案件,包括重庆燃气集团股份有限公司垄断行为案、海南省东方市自来水公司垄断案、内蒙古移动反垄断调查案等,案件领域覆盖自来水、天然气、电信等各个行业。

  这类案件大多表现为公用企业滥用自身独占或垄断地位,实施对消费者附加不合理的交易条件、滥收费等行为,严重侵害了消费者的合法权益。

  由此可知,此类案件是否构成《反垄断法》所认定的利用垄断地位没有正当理由搭售商品,主要是看企业是否剥夺了用户的自主选择权,强制其购买本可以自由选择的商品或服务,侵犯了消费者的合法权益。

  此前,在本案涉及的有线电视服务领域,已有消费者向法院起诉公用企业涉嫌违反《反垄断法》的案例。

  2012年6月,吴某将陕西广电网络传媒(集团)股份有限公司告至西安市中院,称其在有线电视基本收视维护费每月25元的基础上,增加了数字电视节目费5元,将每月的最低费用增加至30元,涉嫌滥用其市场支配地位搭售商品。

  该案一审法院判决广电网络公司收取吴某数字电视节目费的行为无效,并判令广电网络公司返还吴某多交纳的金额。但二审法院认为在该案中消费者可以不选择组合销售的商品,即消费者其实是有选择权的,因而不能被判定为《反垄断法》所规制的没有正当理由的搭售,于是撤销一审判决,驳回吴某全部诉讼请求。

  从以上案例可以看出,消费者通过司法诉讼适用《反垄断法》维权要注意收集证据。相关执法部门适用《反垄断法》查处公用企业的垄断、限制竞争行为可以在更大范围内保护消费者合法权益。国家工商总局组织开展集中整治公用企业限制竞争和垄断行为专项执法行动,就很好地回应了群众的呼声。

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