Analysis On The Case Of Horizontal Monopoly Agreements Dispute Between Whirlpool Co., Ltd. And Shenzhen Pest Management Association

Because of the direct and serious damage which horizontal monopoly agreements on competition, it becomes an object that antitrust laws of all countries severely prohibited. In the case Shenzhen Whirlpool Co., Ltd.V. Shenzhen Pest Management Association, it fucos on the identification of the horizontal monopoly agreements and the identification of monopoly agreements'illegality and the the identification of monopoly agreements'legitimacy.China's "anti-monopoly law", Article 13 explicitly lists five types of horizontal monopoly agreements,while other monopoly agreements that the anti-monopoly enforcement authority as fallback provision, but it doesn't involve the identification criteria of horizontal monopoly agreements. As for the identification of the horizontal monopoly agreements, it needs to return to the basic concept of monopoly agreements, and combined with the subject element, the form element and the element of restricting competition at the same time. After a long period of theory system development and the judicial practice, it established per se rules and the rules of reason to confirm the illegality of monopoly agreements. Per se rules refer to the monopoly agreements that severely restrict competition, regardless of their specific situation, once there, shall be deemed to be illegal. The rules of reason refer to some monopoly agreements which is not necessarily illegal, but according to the purpose or effect of monopoly agreements to decide whether they are illegal or not. But the monopoly agreement is not good for nothing, the legislative mode of China's "anti-monopoly law" is "generally prohibits, special exemption". When an agreement is consistent with elements of monopoly agreements, but also with exemptions under the antitrust laws, and it does not seriously restrict competition and benefits consumers, then the agreement is applicable to exemption system because of its legitimacy.In the case, "Self-discipline Convention" that Pest Management Association and its members signed meets the subject element, the form element and the element of restricting competition, so it is an horizontal monopoly agreement. In the case of China's "anti-monopoly law" does not clearly defined per se rules and the rules of reason and the application scope of the two principles, we should learn from foreign judicial practice and reference academic mainstream view that apply the per se rule to the identification of the illegality of "self-discipline Convention". And, the "self-discipline Convention" in the case does not meet the three conditions of the exemption system, so it can not be exempted without the legitimacy.