Industrial And Commercial Administrative Organ To Prohibit The Abuse Of A Dominant Market Position Provisions Of The Act

Original Language Title: 工商行政管理机关禁止滥用市场支配地位行为的规定

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Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/gwybmgz/201108/20110800347877.shtml

Industrial and commercial administrative organ to prohibit the abuse of a dominant market position provisions of the Act

    (Published December 31, 2010 the State administration for industry and commerce, the 54th as of February 1, 2011) first in order to curb abuse of market dominance in economic activity, according to the People's Republic of China anti-monopoly law (hereinafter referred to as the anti-monopoly law), these provisions are formulated.

    Article II prohibited operators with dominant market status abuse of market dominance in economic activity, to eliminate or restrict competition.

    Third market dominance refers to operators in the relevant markets with the ability to control commodity prices, quantities or other trading conditions, or be able to obstruct, affect the ability of other operators to enter the relevant market and market position.

    Other terms mentioned in this article refer to commodity prices, quantities in addition to other factors that have real impact on the market, including product quality, terms of payment, delivery, after-sales service, etc.

    Referred to in this section to obstruct, influence of other operators to enter the relevant market, refers to the exclusion of other operators access to a relevant market or delay other operators to enter the relevant market in a reasonable time, or other operators can enter the market, but the cost is difficult to develop effective competition in the market.

    Fourth prohibits operators with dominant market status without just cause, refused to trade with trading partners in the following ways:

    (A) reduce the number of existing deals with trading partners;

    (B) the delay, interrupt existing deals with trading partners;

    (C) refuse new transactions with trading partners;

    (D) set restrictive conditions, making it difficult for trading partners to continue to work with its trading;

    (E) refuse to trading partners in the production and business operation activities on reasonable terms to use the required facilities.

    Identified the former subparagraph (e) of item, should consider further investment building, further development of the construction of the facility feasibility, trading partners to effectively carry out the business activities of the facility depends, the operators provide the facility of possibilities as well as the impact of its production and business activities, and other factors.

    Fifth prohibits operators with dominant market status without justifiable reasons, the following qualified transactions:

    (A) qualified trading partners to trade exclusively with;

    (B) restricted trading partners to trade only with designated operators;

    (C) limit trading shall not deal with its rivals.

    Sixth is forbidden to have a dominant market position of the operator did not justify tying goods, trading or attach other unreasonable terms and conditions:

    (A) the breach of trade practices, spending habits or ignored, such as product features, combinations of different forced bundling of goods or sale;

    (B) the duration of contracts, payment, transport and delivery of goods or the delivery of services impose unreasonable restrictions;

    (C) on the commodity sales territories, sales, after-sales service and impose unreasonable restrictions;

    (D) the additional terms has nothing to do with the transaction.

    Seventh prohibits operators with dominant market status without justifiable reasons, the same trading partners the following differential treatment in transaction terms:

    (A) the different transaction number, variety and quality class;

    (B) the different quantity discounts and other favourable terms;

    (C) different payment terms, delivery approach;

    (D) the different warranty duration, maintenance and content and time, spare parts supply, technical and other conditions of service.

    Article eighth Administration for industry and Commerce found that the article fourth to seventh alleged justification, the following factors should be considered:

    (A) is an operator of conduct based on their normal business activities and normal benefits;

    (B) the Act on economic efficiency, public interests, and the effects of economic development.

    Nineth article this is not specified in other acts of abuse of a dominant position, with the exception of acts of price monopoly, legally recognized by the State administration for industry and commerce.

    Article tenth operator having a dominant market position, it should be based on the following factors:

    (A) the operators in the relevant market share, as well as the State of competition in the relevant market.

    Market share refers to the operator within a certain period of a particular merchandise sales, sales and other indicators in the share of the relevant market.

    Analysis should take into account the relevant market competition in the relevant market developments, present the number of competitors and market share, product variations, as well as potential competitors, and so on.

    (B) the operator's ability to control the sales market or raw material procurement market.

    Finds that the operator's ability to control the sales market or raw material procurement market, should take into account the operator's ability to control sales channels, or sourcing, influence or decide the price, quantity, capacity to contract terms, or other terms and conditions, and priority access to enterprise necessary for the production of raw materials, semi-finished products, components and associated equipment and other raw materials.

    (C) the financial and technical conditions for the operator.

    Found that the operator's financial and technical conditions should take into account the operator's assets, financial capacity, profitability, financing, research and development capacity, technical equipment, technical innovation and application, ownership of intellectual property rights.

    Analysis of the financial and technical conditions for operators found that, taking into account the financial and technical conditions for its affiliates.

    (D) other operators dependent on the operator on the transaction.

    Found other operators on the operator in the dependence on the trading, you should consider other operators and the operators of trading, trading relationship between duration of degree of difficulty, and turn to other trading partners.

    (E) the ease of entry into the relevant market.

    Found the ease of entry into the relevant market, should take into account the market access system, have the necessary facilities, sales channel, financial and technical requirements, and costs.

    (F) the determination of the other factors related to market dominance.

    11th under any of the following circumstances, it can be assumed that the operators have a dominant market position:

    (A) a market share of one-second operators in the relevant market;

    (B) the two operators in the relevant market share totals up to two-thirds;

    (C) three operators in the relevant market share totals up to three-fourths.

    Second and third cases as provided for in the preceding paragraph, some operators ' market share is less than one-tenth, and should not be presumed that the operator having a dominant market position.

    12th is presumed to have a dominant market position of the operator, according to the factors listed in this article tenth, prove that it does not have control in the relevant market prices, quantities or other trading conditions, or does not have to obstruct, affect the ability of other operators to enter the market, should not be determined as having a dominant market position.

    13th suspected abuse of dominant market operators, within the time limit set by the Administration for industry and commerce, state the reasons for its rational and provide the relevant evidence.

    Article 14th violation of this article fourth to seventh, Nineth article, abuse of a dominant position, by the administration of industry and commerce shall be ordered to desist from the illegal act, confiscate the illegal income, and annual sales of more than 1% # 10% at the following fine.

    When the industrial and commercial administrative organs to determine the specific amount, should take into account the nature of the offence, circumstances, extent, duration and other factors.

    Operator's initiative to stop the abuse of a dominant market position, and industrial and commercial administrative organs have the discretion to reduce or waive penalties for the operators.

    Section 15th of the industrial and commercial administrative organs in accordance with the provisions of the administrative punishment decision may apply for administrative reconsideration or bring an administrative lawsuit in accordance with law.

    16th industrial and commercial administrative organs anti-monopoly law enforcement personnel shall, in accordance with the administrative authorities for industry and Commerce investigated and dealt with monopoly agreements, abuse of dominant market position provisions of the procedural requirements of the case, in strict accordance with the law.

    Industrial and commercial administrative organs antitrust enforcement officials who abuse their powers, neglect their duties, engage or disclose commercial secrets obtained in the course of law enforcement, in accordance with the relevant provisions.

    Article 17th goods include services mentioned in these regulations.

    Article 18th by the State administration for industry and commerce is responsible for the interpretation of these provisions. 19th article of the regulations come into force on February 1, 2011.