The Research On The Identification Of Concerted Actions Of Monopoly Agreements

Since the concerted actions are not presented objectively in the form of written,verbal agreements or decisions,the identification of concerted actions is a great challenge for anti-monopoly law enforcement agencies in various countries.In China,“Anti-monopoly Law of the People’s Republic of China” and “the Temporary Regulation of Anti-monopoly Agreements” prohibit concerted actions,and “the Temporary Regulation of Anti-monopoly Agreements” defines concerted actions as“although no agreement or decision is expressly concluded between the operators,there is substantially a coordinated behavior” and determines four factors that should be examined for identifying concerted actions,including the consistency of the operator’s market behavior,the contact or exchange of information between the operators,the reasonable interpretation of the consistency of the operator’s conduct and the relevant market conditions.So far,only 14 cases related to concerted actions in China which be processed by anti-monopoly law enforcement and court of justice,a few cases of case analysis found that although China has initially established the rules of recognition of concerted actions,but has clearly shown its lag and ambiguity,The problems faced by our country in the process of identifying the concerted actions are related to two aspects,one is the method of identification and the other is the criterion of identification.The extraterritorial experience of identification of concerted actions gives us the enlightenment that we should distinguish the role of four factors in the process of identifying concerted actions,emphasize that communication is the key to identifying concerted actions,and use the presumption rule reasonably to improve the efficiency of the identification of concerted actions.Therefore,by distinguishing the role of four factors,the contact or exchange of information between operators is determined as a basic factor,the business operator’s consistent market behavior,reasonable explanation and related market conditions should be regarded as a facilitating factors,and the method of identifying the concerted actions is that presumption of concerted actions by using the basic factor and plus facilitating factors.In addition,it is supposed to determine the criteria for the basic and facilitating factors,the criterion of the presumption of meeting of mind should be clarified,and in order to avoid the excessive deterrent effect of the rules,the criteria for the presumption of meeting of mind among operators through the basicfactor should be strictly qualified.Anti-monopoly law enforcement and court of justice should also adequately examine the facilitating factors in the case in order to identify concerted actions.