China: 警惕市场力量传导效应 切实维护消费者利益

Last Updated: 15 March 2017
Article by Dentons  

警惕市场力量传导效应 实维护消费者利益

中国工商报2016-12-21 案评人:邓志松

  2016年4月,国家工商总局决定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,产生了巨大社会影响力。2016年12月12日,国家工商总局一天之内公布三件垄断案件,其中两件为供水公司滥用市场支配地位限定交易案。这是继2015年2月海南省东方市自来水公司案、2016年5月内蒙古自治区阿拉善左旗城市给排水公司案后,工商系统再次瞄准供水公司垄断行为作出的行政处罚。但与此前案件不同的是,这次公布的乌鲁木齐水业集团有限公司案和宿迁银控自来水有限公司案违反的是我国《反垄断法》第十七条第一款第(四)项"没有正当理由,限定交易相对人只能与其指定的经营者进行交易"的规定,该类行为较之前供水公司垄断案件所涉行为而言更加复杂

  从国家工商总局公布的竞争执法公告可知,乌鲁木齐水业集团通过制发文件、制定相关管理办法和工作流程等方式,圈定各类供水设施安装和水务工程的"材料库",从而指定交易经营者;宿迁银控自来水公司的行为更加直接,直接指定或在协议中指定供水工程的承包公司。而两家供水公司指定的经营者,分别为两家供水公司的子公司。此类行为的复杂性在于,两家供水公司利用自身市场支配力,通过指定交易经营者影响相邻相关市场的竞争,此类效应被称为"传导效应"。

  在我国,传导效应这一概念首次出现在商务部禁止可口可乐收购汇源的审查决定的公告中,公告指出:"集中完成后,可口可乐公司通过控制'美汁源'和'汇源'两个知名果汁品牌,对果汁市场控制力将明显增强,加之其在碳酸饮料市场已有的支配地位以及相应的传导效应,集中将使潜在竞争对手进入果汁饮料市场的障碍明显提高。"

  传导效应在法律上没有明确定义。从广义上看,传导效应表现为在某一相关市场已经取得支配地位的市场主体,通过某些市场行为进行市场力量的延伸,从而在相邻市场内取得市场支配地位或影响相邻市场的竞争。除了并购之外,搭售、附加不合理交易条件和指定交易经营者等行为都易形成传导效应。

  在国家工商总局公布的两件案件中,乌鲁木齐水业集团有限公司和宿迁银控自来水公司均在城市公共自来水供水服务市场占有支配地位。由于供水价格并没有明显的上涨空间,涉案两家供水公司便瞄准相邻市场即供水设施、材料市场和供水工程承包市场。而这两类市场内存在较多经营者,竞争较为充分,两家供水公司利用小区、房地产开发商等交易相对人对自身的依赖性,强行限制交易相对人的选择自由,损害了相邻市场公平竞争和交易相对人的自由选择权。

  需要注意的是,虽然两案中被限制选择自由的交易相对人为小区、房地产开发商等,但是传导效应的终端仍是消费者。也就是说,在小区、房地产开发商因为供水公司指定交易经营者的行为受到损失后,很有可能将这些损失转嫁到消费者身上。由此可见,消费者利益是否减损应是分析供水公司指定交易经营者行为效果的重要标准。从近期国家工商总局公布的竞争执法公告看,工商系统在查处滥用市场支配地位案件时,遵循较为完善的"界定相关市场覧认定相关市场支配地位覧认定滥用市场支配地位行为覧分析当事人的正当理由覧分析滥用市场支配地位行为效果覧定性与处罚"的思路。而对于消费者利益是否受到损害这一重要标准,反垄断执法部门还是在行政处罚决定书中进一步明确为好。

  随着反垄断执法水平的不断提高,经营者规避反垄断执法的行为也必然更加复杂。反垄断执法机构在执法过程中,除了密切关注案件所涉相关市场的竞争状况之外,还需通过经营者的经营范围分析涉案相关市场的相邻市场,警惕较为隐蔽的传导效应。需要注意的是,消费者利益永远是反垄断执法的关键词,反垄断执法部门在反垄断案件的调查、处罚以及案件分析、定性过程中,应重点关注涉嫌垄断行为对于"民生"以及消费者利益的影响。

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
6 Dec 2017, Webinar, New York, United States

Join Dentons for a complimentary webinar focused on the ongoing challenge of integrating new technologies into existing information governance policies and risk management frameworks.

7 Dec 2017, Seminar, Cape Town, South Africa

Dentons South Africa would be delighted if you could join us for our upcoming event.

8 Dec 2017, Seminar, Johannesburg, South Africa

Dentons South Africa would be delighted if you could join us for our upcoming event.

 
Some comments from our readers
典he articles are extremely timely and highly applicable
的 often find critical information not available elsewhere
鄭s in-house counsel, Mondaq痴 service is of great value

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you致e read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com痴 content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd痴 services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with 渡o disclosure in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user痴 hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend痴 name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user痴 personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user痴 personal data provided to us. This can usually be done at the 添our Profile page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

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.