| Internet platforms have increasingly become the focus of antitrust supervision all over the world.In China,the Internet platform exclusive dealing issue is a prominent problem.As for the reason,China’s super-large-scale consumer market and the Internet industry’s advantage transmission effect are its internal driving force,and the low cost of illegality caused by the absence of effective supervision expands the impact of this problem.The main reason for the absence of effective supervision is that the current Anti-Monopoly Law is difficult to apply to the Internet industry,and law enforcement is relatively weak due to the difficulty of law application,insufficient budget and staffing and other factors.This also leads to insufficient exogenous motivation for Internet companies to build effective internal compliance.Therefore,on the basis of fully understanding the characteristics of Internet platforms and the causes,connotations and regulatory necessity of the exclusive dealings of Internet platforms,this article mainly discusses the application and enforcement of law on the Internet platform exclusive dealing issue.Regarding the application of law,this article mainly discusses the rationality of not defining the relevant market when applying the Anti-Monopoly Law to regulate Internet platform exclusive dealings and discuss the refinement of the standards of not defining the relevant market clause proposed in Antitrust Guidelines for the Platform Economic Industry(draft for comments).Regarding the law enforcement,this article discusses and recommends from two aspects: increasing the cost of violations and strengthening the power of anti-monopoly law enforcement.Before identifying and regulating a monopolistic behavior,we should first analyze the connotation of this economic behavior and the market pattern behind it.If we cannot accurately understand the nature of this economic behavior and the key factors that may form a monopolistic behavior,there is no way to effectively regulate it with the law.Therefore,the first chapter of this article starts with the characteristics of the Internet platform,the cause of the Internet platform’s exclusive dealings behavior and the necessity of regulation.The online economy has characteristics such as bilateral marketability,network externalities,lock-in effects,and price asymmetry.This is reflected in the fact that the Internet platform for two interrelated consumer groups can often lead to an increase in the number of users on the other side by implementing a free pricing strategy on one side,and a platform with a larger number of users is easier to attract more users to join.The user base has also become the source and cornerstone of corporate competitiveness.At the same time,users’ cost on attention,information and data deposited on a platform will form a “lock-in effect”,leading to stronger user stickiness and higher market entry barriers,thereby enabling relevant companies to gain and maintain market dominance.The characteristics of the Internet platform industry have brought challenges to basic theories and regulatory systems for the Anti-Monopoly Law,which was born in the age of industrial economy.The second chapter of this article focuses on the exclusive dealings behavior of Internet platforms,and discusses the regulatory path of abuse of market dominance in the Anti-Monopoly Law combined with the latest legal documents,and mainly discusses related market definition issues.The relevant market is usually the starting point for the analysis of a competitive behavior in traditional Anti-Monopoly law enforcement.The traditional methods of defining relevant markets cannot be precisely defined in the Internet platform industry due to its characteristics,which to a large extent makes it difficult for antitrust investigations to proceed smoothly in this issue.But the definition of the relevant market is just a means,it’s not an end.In order to regulate the “exclusive dealings” of Internet platforms,the Anti-Monopoly Law should weaken the definition of the relevant market when measuring market dominance.Under necessary circumstances,the relevant market may not be defined,and specific standards shall be used to clarify the conditions for satisfying the necessary circumstances to improve operability.Chapter three gives out advice for regulating Internet platform exclusive dealings issue in three aspects.Firstly,although the Antitrust Guidelines for the Platform Economic Industry formally promulgated in 2021 deletes the relevant content that the specific circumstances innovatively set in its previous consultation draft can directly presume whether it has a dominant market position and abuse without defining the relevant market.However,the “usually need to define the relevant market” wording still leaves room for the possibility of not defining the relevant market in some cases.Therefore,this article still discusses the four conditions that need to be met in the draft of the guidelines for not defining relevant market conditions.In addition to traditional competition regulations,the European Union,Germany and Japan have tried new legal regulations.The draft of the EU’s Digital Market Law created a new concept of gatekeeper,setting out the obligations and prohibited behaviors that qualified companies need to undertake,allowing the European Commission to directly impose penalties on prohibited behaviors without complicated arguments in competition law.Germany and Japan’s approach are also roughly similar.Furthermore,effective pre-regulation and post-enforcement are also a major part of anti-monopoly regulations.The cost of violations should be increased,the power and efforts of law enforcement should be expanded and increased.It also creates effective external motivation for enterprises to build an internal compliance system.The EU’s innovative thinking,together with corporate internal compliance,can be used as an important pre-regulatory approach so that violations can be regulated before damage is caused and minimizing damage. |
