China: Auto Industry: Antitrust Guidelines + Sales Measures = Two New Rules Expected To Be Issued This Year And To Shake Up The Whole Industry

汽车反垄断指南和销售办法两大新规有望年内出台 将对汽车 行业产生重大影响

由国家发改委起草的《国务院反垄断委员会关于汽车业的反垄断指南》("《汽车反垄断指 南》")和商务部起草的《汽车销售管理办法》在今年上半年均已完成公开征求意见,目前正 分别等待国务院反垄断委员会和商务部部务会的审议通过。按照现在的进展速度,两部新规 有望在本年内出台。届时,汽车行业中的汽车供应商、经销商、维修商以及零部件供应商等 市场主体都将受到重大影响,特别是汽车供应商将必须改变许多过去的习惯性做法。

In the first half of this year, both the Antitrust Guidelines of the Anti-Monopoly Committee of the State Council for Auto Industry ("Antitrust Guidelines for Auto Industry") drafted by the National Development and Reform Commission ("NDRC") and the Administrative Measures for Auto Sales drafted by the Ministry of Commerce ("MOFCOM") had finished the public comments solicitation period, and are currently pending approval from the Anti-Monopoly Committee of the State Council and the ministerial meeting of MOFCOM respectively. According to the current progress, the two new rules are expected to be issued this year. By then, the market players in auto industry, such as the auto suppliers, distributors, maintenance service providers and parts suppliers, etc., will be significantly affected. In particular, auto suppliers will have to change many routines of the past practices.

一、 背景

1. Background

自2009 年超越美国首次成为全球第一大汽车销售市场以来,中国已经连续七年蝉联世界 冠军。这背后私家车年均20%左右的增长率功不可没;截至2015 年底,全国私家车总量已超 1.24 亿辆,每百户家庭拥有31 辆汽车。

China has been the world's largest auto sales market for seven consecutive years since it surpassed the US for the first time in 2009. Behind this achievement, the 20% average annual growth of private cars has played a significant role. By the end of 2015, the national total of private cars had exceeded 124 million, with every 100 households owning 31 cars.

随着汽车销量的突飞猛进,越来越多的问题也逐渐暴露出来。除了环境污染、交通拥堵、 油价调控等宏观问题,消费者遇到最多的是产品质量、格式合同、售后服务、维保费用等方 面的微观问题,而这集中反映在中国消费者协会每年发布的汽车产品投诉分析报告中。在这 些问题当中,汽车4S 店维保费用高尤使消费者怨声载道。

With the rapid growth of car sales, more and more problems have been exposed. In addition to the big issues such as environmental pollution, traffic congestion, oil prices control, etc., what consumers encountered the most are the small but concrete issues of product quality, standard contracts, after-sales service, maintenance costs, etc., which have been epitomized in the analysis reports of auto product complaints annually published by China Consumers Association. Among these issues, the high maintenance fees charged by auto 4S stores is one that consumers have particularly complained.

2014 年,中国保险行业协会和中国汽车维修协会联合发布18 种常见车型的"整车配件 零整比"和"50 项易损配件零整比"两个系数。在整车配件零整比系数中,18 个车型中系数 最高为1273%,最低为272%;在50 项易损配件零整比系数中,18 个车型中系数最高的为 223%,最低为77%。

In 2014, Insurance Association of China and China Automotive Maintenance and Repair Trade Association jointly published two ratios: the "Parts-to-Whole Price Ratio of auto parts" and the "Parts-to-Whole Price Ratio of 50 easily-worn parts" of 18 common vehicle models. In regard to the Parts-to-Whole Price Ratio of auto parts, the highest ratio is up to 1273%, and the lowest ratio is 272%. As for the Parts-to-Whole Price Ratio of 50 easily-worn parts, the highest ratio is 223% and the lowest is 77%.

数据一出,社会反响强烈,纷纷指责汽车零部件价格不合理,可能存在垄断问题。而当 时,国家发改委实际上已经展开了一场席卷汽车行业的反垄断调查运动。在2014 年和2015 年,五个汽车品牌的供应商和/或经销商共被处以8 亿多元的反垄断罚款。虽然被查处的垄断 行为主要集中在汽车供应商限定经销商的整车售价方面,但汽车供应商的强势地位与零部件 的过高价格也引起了反垄断执法机构的关注。

These data published by the associations have drawn great attention. The public have accused that the prices of the auto parts are unreasonable and monopolistic problems might exist. While at that time NDRC had already launched an antitrust investigation campaign sweeping the auto industry. In 2014 and 2015, the auto suppliers and / or distributors of five auto brands received a total antitrust fine of more than RMB 800 million. Although the monopolistic behavior investigated was mainly the restriction auto suppliers imposed on the sales prices of vehicles sold by distributors, the strong market position of auto suppliers and the unreasonably high parts prices also attracted the attention of antitrust enforcement agencies.

二、 新规

2. New Rules

面对社会反映强烈的汽车行业中的问题(特别是汽车维保费用高以及零部件价格不合理), 与汽车行业有关的各个部门纷纷行动,在各自的权限范围内采取解决措施。

Faced with these most complained and discussed issues (especially the high costs on maintenance and repair as well as the unreasonable parts price), those departments relating to auto industry have been taking measures to solve them within their respective jurisdictions.

汽车行业中的问题首先被归咎于汽车供应商的强势地位,而这种地位又主要来源于2005 年商务部、国家发改委和工商总局联合颁布的《汽车品牌销售管理实施办法》所建立的汽车 授权经销体系。根据该办法,要成为汽车经销商,首先需要得到汽车供应商的授权,然后在 工商部门进行备案,最后在营业执照上注明具体经销的汽车品牌。由此,汽车供应商对经销 商具有强大的控制力,经销商在汽车销售、零部件采购和销售、维修保养等方面缺乏自由, 市场竞争活力不足。

These existing issues in auto industry are mainly caused by the strong market position of auto suppliers which is originated from the authorized distribution system established in the Measures for the Implementation of the Administration of Auto Brand Sales ("Auto Brand Sales Measures") jointly issued by MOFCOM, NDRC and State Administration for Industry & Commerce ("SAIC") in 2005. According to the Auto Brand Sales Measures, where a person wants to become an auto distributor, it shall firstly obtain authorization from auto suppliers, and secondly register with AICs, and finally record the specific auto brands distributed by it in its business license. And thus, the auto suppliers have a rather strong control over their auto distributors. Distributors lack freedom in auto sales, parts procurement and sales, auto maintenance, etc., which led to a decreased level of competition in the auto market.

为了平衡汽车供应商和经销商的关系,维护公平公正的市场秩序,商务部2014 年开始研 究修订《汽车品牌销售管理实施办法》,而工商总局则率先在2014 年10 月1 日取消了汽车经 销商备案制度,实质上使汽车经销不再局限于授权经销体系,非授权经销商也可以销售汽车。

With a view to balancing the relationship between auto suppliers and distributors, maintaining a fair and just market order, MOFCOM began to study the revision of the Auto Brand Sales Measures in 2014, while SAIC canceled the filing system for auto distributors on its own initiative as from 1 October 2014, which indicates that auto distribution is no longer limited by authorized distribution system and non-authorized distributor can sell vehicles as well.

此外,2015 年9 月14 日,交通运输部等八部委联合发布《汽车维修技术信息公开实施 管理办法》,要求汽车生产商公开特定汽车维修技术信息,以推动汽车维修业发展,降低汽车 维保费用。

In addition, on 14 September 2015, the Ministry of Transport, together with other seven ministries, jointly issued the Measures for the Implementation of the Administration of Technical Information Disclosure on Vehicle Repair ("Information Disclosure Measures"), which requires auto manufacturers to disclose certain technical information on vehicle repair so as to promote the development of vehicle repair industry, lowering vehicle maintenance cost.

尽管各项新措施有些令人应接不暇,但汽车行业必须准备好迎接更为重磅的《汽车反垄 断指南》和《汽车销售管理办法》。

Although the aforesaid new measures are somewhat overwhelming, auto industry must be ready for the incoming Antitrust Guidelines for Auto Industry and the Administrative Measures for Auto Sales, which are far more pressing and important than former regulations.

(一) 《汽车反垄断指南》

A. Antitrust Guidelines for Auto Industry

经国务院反垄断委员会授权,国家发改委自2015 年6 月起着手起草《汽车反垄断指南》。 根据积累的反垄断调查经验并借鉴国外立法,《汽车反垄断指南》一方面明确了可能违法的限 制性行为,另一方面提供了一些豁免情形。

Under the authorization of the Anti-Monopoly Committee of the State Council, NDRC began to draft the Antitrust Guidelines for Auto Industry in June 2015. Based on the antitrust enforcement experience accumulated and by reference to foreign legislation, the Antitrust Guidelines for Auto Industry not only clarifies the possible illegal restrictive behaviors, but also provides certain exemption circumstances.

就可能违法的限制性行为,汽车供应商需要特别注意以下方面的规定:

As for the possible illegal restrictive behaviors, auto suppliers need to pay special attention to the following regulations:

  • 一些类型的地域限制和客户限制(如限制经销商的被动销售)很可能构成纵向垄断 协议。

    Certain types of geographic restraints and customer restraints (e.g. restricting the passive sales of distributors) may constitute vertical monopoly agreements.
  • 强制经销商购买一些产品或服务也有可能构成纵向垄断协议。

    Forcing the distributors to purchase certain products or service may constitute vertical monopoly agreements.
  • 汽车供应商可能被认定在其品牌汽车的售后市场上具有市场支配地位,因此对经销 商在零部件采购和销售等方面的限制可能构成滥用市场支配地位。

    Auto suppliers may be determined as a dominant player in its after-sales market of its brands and thus may be determined as dominance abuse when it imposes restraints on distributors in respect of auto parts procurement and sales.

《汽车反垄断指南》篇幅较长,规定较多,需要汽车行业各市场主体仔细研究和遵守, 避免未来出现违法行为,受到反垄断执法机构的严厉制裁。

Since the Antitrust Guidelines for Auto Industry provides numerous regulations and provisions, market players in auto industry need to study carefully and abide by it, avoiding any future violation and severe sanctions from antitrust enforcement agencies.

(二) 《汽车销售管理办法》

B. Administrative Measures for Auto Sales

《汽车销售管理办法》中对汽车供应商和经销商的销售行为进行了一系列规范,特别是 明确禁止了汽车供应商对经销商施加一些类型的限制(例如,搭售、压库、禁止经销商交叉 供货等)。由于这些类型的限制与《反垄断法》以及《汽车反垄断指南》所禁止的限制类型存 在重合,而且《汽车销售管理办法》不需要认定汽车供应商具有市场力量或市场支配地位就 直接禁止这些类型的限制,因此如何处理《汽车销售管理办法》与《反垄断法》以及《汽车 反垄断指南》之间的关系需要汽车供应商注意。

The Administrative Measures for Auto Sales provides a series of provisions on distribution behaviors for auto suppliers and distributors, especially forbidding explicitly certain types of restraints imposed by auto suppliers on distributors (e.g. tying, inventory backlog, forbidden of cross supply, etc.). In addition to that such restraints are overlapped with the restraints forbidden by the Anti-Monopoly Law ("AML") and the Antitrust Guidelines for Auto Industry, the behaviors suspected of violating the Administrative Measures for Auto Sales do not require the market player having market power or holding a dominant position, and therefore auto suppliers should pay great attention to the issue of how to properly navigate through the relationships among such laws and regulations.

就此而言,商务部的态度是,在当前阶段汽车供应商普遍对于经销商具有相对优势地位, 因此为了平衡二者的关系,《汽车销售管理办法》直接禁止供应商从事一些限制行为。如果汽 车供应商具有市场支配地位,那么再由《反垄断法》进行规制,而且《反垄断法》的处罚金 额要高得多。

In this regard, MOFCOM hold the view that since auto suppliers generally hold superior bargaining position, in order to balance the relationship between the auto suppliers and distributors, the Administrative Measures for Auto Sales directly forbids certain restrictive behaviors implemented by auto suppliers. If auto suppliers have dominant position, then it will be the turn of the AML to regulate their behaviors. Furthermore, the monetary penalties provided in the AML is much higher than that in Administrative Measures for Auto Sales.

三、 展望

3. Outlook

汽车行业是国民经济的重要支柱,汽车也是一般家庭仅次于住房的第二大开支,因此解 决汽车行业中的各类问题将始终是政府的工作重点。目前来看,反垄断已经成为政府的重要 着力点。通过对整个行业的反垄断执法运动以及特别针对汽车行业制定首部行业性反垄断指 南,政府期望汽车行业严格遵守反垄断法律。相信在《汽车反垄断指南》出台后,对于汽车 行业的反垄断执法将持续进行,任何屡教不改的垄断行为都将受到严厉制裁。

The auto industry is an important pillar of the national economy, and vehicles are usually the second largest expense next to housing. Hence, solving problems in auto industry will always be government's priorities. Currently, antitrust has become a focus of the government work. Through the antitrust enforcement in auto industry, and particularly the drafting of the first industry-specific antitrust guidelines for the auto industry, the government expects market players in this industry strictly abide by antitrust laws and regulations. It is believed that the antitrust enforcement targeting at auto industry will continue after the enactment of the antitrust guidelines, and any persistent monopolistic behavior will be subject to severe sanctions.

对于《汽车反垄断指南》与《汽车销售管理办法》、《汽车维修技术信息公开实施管理办 法》等存在重叠甚至潜在冲突的问题,汽车行业各市场主体首先需要采取最严格的合规标准, 避免成为新规出台后的首试牛刀者。如果未来在实践中汽车行业市场主体普遍认为不同法规 之间存在较大矛盾,为合规工作带来较大不确定性,则可以通过汽车行业协会向政府提出建 议,在立法、执法方面进行调整。相信各部门从各自角度出发的立法、执法最终将汇集成一 股合力,推动中国汽车行业的健康发展,维护广大消费者的根本权益。

As for the overlaps or even potential conflicts among the Antitrust Guidelines for Auto Industry, the Administrative Measures for Auto Sales and the Information Disclosure Measures, market players shall, firstly, adopt the most stringent compliance standards to avoid becoming the first to be investigated and punished under the new rules. If, in practice, market players generally believe that there are significant conflicts among these rules, for the avoidance of compliance uncertainty, they may make recommendations on the adjustment of legislation and law enforcement to the government through the auto industry associations. It is believed that the legislation and law enforcement by all departments, from their respective point of view, will eventually converge into a joint force to promote the healthy development of China's auto industry and safeguard the fundamental interests of the consumers.

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If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.