The Identification Of Concerted Practices:A Comparative Study On The Law And Practice Of European Union,Germany And China

As one of the three forms of monopoly agreement,concerted practices appear more and more frequently in economic life.The collusion between enterprises is more and more hidden and difficult to discover.After a long period of judicial practice and administrative law enforcement,European Union and Germany have developed a series of mature and complete theories and methods on the identification of concerted practices.After the promulgation of the Anti-monopoly Law of China in 2008,the application of concerted practices in anti-monopoly law enforcement is limited,only two cases were published,the practice is not yet mature.This paper attempts to analyze the statutory laws and regulations for the identification of concerted practices in our country,introduce the latest cases related to concerted practices published by the anti-monopoly law enforcement agencies and find the shortcomings of the identification of concerted practices.This paper systematically combs the theory and practice of EU and Germany in order to provide reference for the relevant practice of China's anti-monopoly law enforcement agencies.This paper is divided into the following five parts:The first part elaborates the relevant provisions of the antitrust system in China on the identification of concerted practices with a brief analysis,and combines with the practice of China's concerted practices and then puts forward the existence of four issues,namely,the duties of anti-monopoly law enforcement agencies are unclear,substantial standard of the identification of concerted practices is fuzzy,constituent elements of concerted practice are typical and fixed and at last the proven methods should be integrated and classified.The second part focuses on the question of the substantial standard of concerted practices,combs the historical development of the concept of concerted practices in theory and practice of competition law in Germany and European Union systematically.According to the fundamental goal of EU and German competition law and the case analysis of European courts identify the substantial standard of concerted practices,namely actively excluding the risks associated with decentralized decision-making.After that compares it with parallel behavior.By analyzing the unanimous aim "maintain the competition" of the Chinese antitrust law and the EU and the German competition law to,this paper clarifies the catch all function of the concerted practices in the prohibition of the monopoly agreement(or prohibits the cartel),and expounds the feasibility of introducing the substantial standard.In the third part,it introduces the framework of concerted practices-concerted action,the market conduct of undertakings and the causal connection between them.After that,there will be special focus on three special cases:namely the exchange of information as restrictions of competition,market-led coordination,and coordination in the vertical agreement.Through the discussion adhere to the meaning of the contact and the corresponding market behavior of the two elements of this view,but give up the requirements of consistency of corporate market behavior to expand the scope of application of concerted practices.The exchange of information between enterprises should be analyzed with the discussion of the purpose and effects of limiting competition.In the fourth part,combining with the case study of European Union and Germany,this paper tries to analyze the standard and the process of proving the concerted practices,especially summarize circumstantial evidence,including the uniform conduct against normal market condition,the violation of self-interest,the structural and the contractual connection between enterprises.It is suggested that the rebuttable presumption should be applied in the administrative law enforcement of our country,the burden of proof of the anti-monopoly law enforcement agencies should be reduced,and a complete proof path will be summed up for the practice of our concerted practices.In conclusion section compares the theory and practice of China,Germany and European Union,further more purposes measures to perfect the identification of concerted practices in China.Firstly,it is necessary to improve the enforcement power of anti-monopoly law enforcement agencies.Secondly,the fundamental meaning of concerted practices-actively excluded from the risk associated with decentralized decision-making-should be clear.Thirdly,two elements namely concerted action and the corresponding market conduct are very important,and then the restriction of competition should be analyzed combining the information exchange situation;finally,it is necessary to use circumstantial evidence to infer the idea connection between enterprises.