China: SAIC Publishes Announcement On Regulating The Restrictive Behaviors Of Competition And Monopolistic Behaviors Of Public Utilities (In Chinese)

Last Updated: 15 April 2016
Article by Zhan Hao and Song Ying

公用企业包括供水、供电、供气、公共交通、殡葬等行业的限制竞争和垄断行为受到竞争执法部门的关注。2016年4月7日,国家工商行政管理总局发布了《工商总局关于公用企业限制竞争和垄断行为突出问题的公告》,该公告将对公用企业的市场经营活动产生重要影响。

《工商总局关于公用企业限制竞争和垄断行为突出问题的公告》(以下简称"《公告》")重点关注供水、供电、供气、公共交通、殡葬等公用企业(以下简称"公用企业")在经营活动中频繁发生的且对消费者具有重要影响的行为。

中国《反垄断法》第7条规定国有经济占控制地位的关系国民经济命脉和国家安全的行业以及依法实行专营专卖的行业,国家对其经营者的合法经营活动予以保护,但是,上述行业的经营者应当依法经营,诚实守信,严格自律,接受社会公众的监督,不得利用其控制地位或者专营专卖地位损害消费者利益。

《公告》基于《反垄断法》第7条规定,对公用企业可能涉及的违反《反垄断法》的典型行为类型具体说明,予以警示。

在《公告》中,工商总局列举了公用企业从事强制交易、限定交易、附加不合理交易条件、不公平高价、搭售的限制竞争和垄断行为的行为类型并明确规定法律责任。因此,对用公用企业而言,准确理解《公告》内容并进行合理的事先风险防范尤为重要。

工商总局公告中明确列举了以下限制竞争的行为类型:

1、强制交易

  • 供水、供电、供气企业强制或变相强制向用户收取最低用水(电、气)费用、强行向收取用户"用水(电、气)押金""保证金"或者强行指定、收取"预付水(电、气)费"的最低限额;
  • 供水、供电、供气企业强制或变相强制用户购买保险(如财产损失险、人身意外伤害等)或其他不必要的商品;
  • 公共交通企业强制或变相强制乘客购买意外伤害保险;
  • 殡葬公用企业强制或变相强制死者家属接受其他收费祭奠服务。

2、限定交易

  • 供水、供电、供气企业限定用户只能接受其指定的经营者提供的水表委托检定服务、指定施工单位的设计、安装工程等服务;
  • 公共交通公用企业在办理公交IC卡时,限定乘客接受其指定的经营者提供的延伸服务或滥收费用。

3、附加不合理的交易条件

  • 供水、供电、供气企业在提供水、电、气的入户服务时,强制或变相强制申请办理水、电、气入户的经营者或消费者购买其提供的入户设备和材料;
  • 供水、供电、供气企业及其下属单位或被指定的经营者,在办理电卡、提供用电服务时,对新建住宅楼住户强制收取入户费(电力管网建设费用)或者在供气时向用户强制收取气瓶检测费、气瓶清洁费等;
  • 殡葬企业提供殡葬服务或保存骨灰等延伸服务时,强制死者家属购买其销售的骨灰盒、祭奠用品。

4、不公平高价

  • 公共交通企业在用户初次申领公交IC卡时,收取或变相收取明显高于成本价的工本费或押金。

5、搭售

  • 殡葬企业在殡葬费用中直接计入骨灰盒、祭奠用品等的费用,滥收死者家属费用。

法律责任

公告明确对主动纠正违法行为并切实采取整改行动的公用企业可以从轻处罚。

鼓励举报

公告鼓励社会监督,欢迎社会各界和消费者向当地工商、市场监督管理部门投诉举报公用企业的限制竞争和垄断行为。

该公告表明了工商总局对公用企业限制竞争和垄断行为的重视,和推进竞争法执法的决心。

提请公用企业注意,工商总局决定自今年 4月至10 月对公用企业限制竞争行为进行专项执法行动。在此期间,公用企业有必要自我审视是否存在上述列举行为,严格规范日常的经营活动。

《工商总局关于公用企业限制竞争和垄断行为突出问题的公告》原文链接 http://www.saic.gov.cn/zwgk/zyfb/zjwj/fld/201604/t20160408_167829.html

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