Legislation
SPC: Accelerate the Development and Accurate Application of Anti-Monopoly and Anti-Unfair Competition Judicial Interpretations
On January 8, 2023, the Supreme People's Court ("SPC") held a meeting of the chief justices of the high courts from across China to deploy the work of the people's courts in 2023. The meeting pointed out that cases involving new technologies, new business models and new modes should be properly tried in accordance with the law to help enhance the scientific and technological strength and innovation capacity of China's digital economy. They should accelerate the development and accurate application of anti-monopoly and anti-unfair competition judicial interpretation to maintain fair competition. 1
Authorities
Shanghai Anti-Monopoly and Price Regulation Work 2022 Year-End Roundup
On January 17, 2023, Shanghai Administration for Market Regulation ("AMR") released a summary of the anti-monopoly and price regulation work in 2022. In the last year, Shanghai AMR closed one economic monopoly case, corrected several cases of abuse of administrative power to exclude and restrict competition and opened one case, and reviewed 63 cases of concentration of operators entrusted by the State Administration for Market Regulation ("SAMR") (46.7% of the total number of entrusted cases nationwide). 2
Beijing Has Self-Reviewed More than 5,000 Policy Documents in Two Years to Promote Fair Competition Review
On January 15, the head of Beijing AMR told reporters that Beijing had set up a joint committee on fair competition review, and currently there are 38 member units, covering all the departments of the municipal government. In the past two years, there were more than 5,000 policy documents self-reviewed by each department and randomly inspected by the joint committee. Many problems had been found and rectified. 3
SAMR Releases 2022 Anti-Monopoly Enforcement Data
On January 14, SAMR released a summary of the 2022 annual work results data. In terms of competition policy, SAMR investigated and handled 73 cases of abuse of administrative power to eliminate or restrict competition and 149 cases of market monopoly, concluded 794 cases of merger filing, and publicly punished 32 cases of failure to file according to law. 4
National Market Supervision Work Conference Is Held, the Focus of Work in 2023 Includes Anti-Monopoly
On January 13, the National Market Supervision Work Conference was held. It was requested that in 2023, we should focus on nine aspects of work, including: effectively improving the level of normalized supervision, promoting the healthy and sustainable development of the platform economy, and supporting platform enterprises to play an important role in leading development, creating jobs, and international competition; continuously optimizing the fair competition environment, strengthening anti-monopoly and anti-unfair competition, strengthening intellectual property protection and management services, and stimulating market competition and innovation vitality; carrying out in-depth supervision and law enforcement in the field of people's livelihood, regulating market order, optimizing the consumption environment, and safeguarding the vital interests of the people. 5
Cases of Special Enforcement Action in 2022 to Stop the Abuse of Administrative Power to Eliminate or Restrict Competition (Fifth Batch)
On January 11, SAMR announced 15 cases of abusing administrative power to eliminate or restrict competition investigated and handled by local market supervision departments, involving acts such as limiting transactions, impeding the free flow of goods, and restricting out-of-town operators from participating in local bidding and tendering activities. This was the fifth batch of cases announced since the special action was launched in 2022. 6
Public Enforcement
Jiangsu AMR Investigates the Abuse of Administrative Power to Eliminate or Restrict Competition by Changzhou Administration of Housing and Urban-Rural Development
On January 11, 2023, Jiangsu AMR issued an investigation into the abuse of administrative power to eliminate or restrict competition by Changzhou Administration of Housing and Urban-Rural Development ("AHURD"). Jiangsu AMR held that the behavior of Changzhou AHURD eliminated or restricted competition in the market of Changzhou construction safety production liability insurance. 7
Anhui AMR Investigates and Punishes Seven Cruise Companies for Concluding and Implementing Monopolistic Agreements
On January 4, SAMR issued an administrative penalty decision by Anhui AMR against seven cruise companies of Taiping Lake in Huangshan City for concluding and implementing monopolistic agreements. The seven companies were confiscated the illegal income and fined 3% of their sales in 2018, totaling about RMB 420,000 yuan. 8
Beijing AMR Investigates and Punishes Straumann for Concluding and Implementing the Monopolistic Agreement and Imposes a Fine of RMB 34.39 Million
On December 30, 2022, SAMR issued an administrative penalty decision by Beijing AMR against Straumann (Beijing) Medical Device Trading Co., Ltd. for concluding and implementing the monopolistic agreement. Straumann implemented a monopoly agreement to fix resale prices and set minimum resale prices for dental implant-related goods. Straumann was fined 3% of its sales in 2020, approximately RMB 34.39 million. 9
Guangxi AMR Investigates Water Supply Company's Abuse of Dominant Market Position to Restrict Transactions, Which Has Been Found by the Court to Be Abusive
On December 29, SAMR issued an administrative penalty decision by Guangxi AMR against Yongfu County Water Supply Company for abuse of its dominant market position. The water supply company was fined a total of RMB 312,000 for committing the abusive act of restricting transaction, amounting to 3% of its sales in 2020. It is worth noting that in 2019 the court found the company had committed the abusive act of tying and upheld a consumer's damage claim.10
Merger Control
SAMR Releases a Summary of the Pilot Entrustment of Merger Review
On January 3, 2023, SAMR held a symposium on the pilot entrustment of merger review to summarize the effectiveness and experience. Since the pilot entrustment five months ago, SAMR had entrusted a total of 135 cases of merger review to five provincial and municipal AMRs, accounting for 32.7% of the filing volume in the same period. The average time spent from the acceptance to the conclusion of cases was 17.8 days, which was basically consistent with SAMR.11
Courts Litigation
Final Verdict in SAIC-GM Monopoly Case Follow-On Claims: Consumers Win for the First Time
On December 15, 2022, SPC issued a final judgment on the follow-on damage claim in the SAIC-GM minimum resale price maintenance case, upholding the plaintiff's claim for compensation for monopoly damages. The case clarified the allocation of the burden of proof in follow-on damage claims, the subject of civil compensation in the resale price maintenance civil compensation litigation, and the determination of the amount of compensation.12
SPC Finds Market Dominance in Lianjia's Alleged Abuse of Dominant Position
On December 14, SPC issued a final judgment in the case of Lianjia being sued for abuse of its dominant position. The court of first instance had ruled that Lianjia did not have the dominant position and did not constitute abuse in the relevant market of the case. SPC held that the trial court erred in identifying the relevant service market and found that Lianjia had the dominant market position, but the evidence was still insufficient to prove that it constituted abuse, and ultimately upheld the outcome of the first instance decision.13
SPC Releases Full Text of Typical Antitrust Case Decision, Including the Rules for Determining "Other Concerted Actions"
Recently, the Chinese Judicial Documents website released the full text of the final judgment of administrative lawsuit challenging the anti-monopoly administrative punishment case of the "horizontal monopoly agreement of Maoming concrete enterprises". The case was one of the typical anti-monopoly cases issued by SPC in November 2022, which clarified the determination of "other concerted actions" and the understanding of "the previous year".14
Footnotes
1. https://m.jiemian.com/article/8710051.html
2. https://mp.weixin.qq.com/s/nN4BRhZzYXs1R4ntQwItfA
4. https://mp.weixin.qq.com/s/xXy4Y5EQk1Q1nebOLqsexg?scene=25#wechat_redirect
5. https://www.samr.gov.cn/xw/zj/202301/t20230113_352861.html
6. https://www.samr.gov.cn/jzxts/tzgg/qlpc/202301/t20230111_352803.html
7. http://scjgj.jiangsu.gov.cn/art/2023/1/11/art_78968_10723645.html
8. https://www.samr.gov.cn/fldys/tzgg/xzcf/202301/t20230104_352663.html
9. https://www.samr.gov.cn/fldys/tzgg/xzcf/202212/t20221230_352562.html
10. https://mp.weixin.qq.com/s/75maAbp6s9X6cRbK8u5NHg
11. https://www.samr.gov.cn/fldes/sjdt/gzdt/202301/t20230104_352672.html
12. https://mp.weixin.qq.com/s/pkvna9CWZCr3URdFX_xgyA?scene=25#wechat_redirect
13. https://m.mp.oeeee.com/a/BAAFRD000020230117758042.html
14. https://mp.weixin.qq.com/s/r-VyeygxJFaDwylIDbVaiA
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