Today is the second milestone in China's anti-monopoly history. The first is that on August 30th, 2007, the National People's Congress Standing Committee (NPCSC) passed the Anti-Monopoly Law of the People's Republic of China. The essence of market economy is competition, and the anti-monopoly law is to ensure competition, so it is often called the constitution of market economy.
However, China's anti-monopoly law is like a toothless tiger. Since the implementation of 1 in August 2008, there has been little strength. When facing the internet industry, it is a tiger in a cage, allowing offenders to play happily in front of them.
The State Administration of Market Supervision fined Alibaba Group 654.38+082 billion yuan, ending the toothless period of the anti-monopoly law. This case is not only of great significance to China's platform economy and Internet economy, but also a landmark event for the orderly development of the whole economy.
But why Ali? Why now?
The exact fine figure is 65.438+08.228 billion yuan, and the 28 million yuan omitted after the decimal point is also a huge fine in the past. Before this case, the three major fines issued by the anti-monopoly law enforcement agencies in China were:
From 2065438 to February 2005, the National Development and Reform Commission imposed a fine of 6.088 billion yuan on Qualcomm, on the grounds that the company abused its dominant market position, charged patent license fees at unfairly high prices, and carried out monopolistic behaviors such as tying.
20 14 In August, the National Development and Reform Commission imposed fines on two Japanese parts companies, including mitsubishi electric and others, on the grounds that they reached a horizontal monopoly agreement to exclude and restrict competition.
20 1 1 16 10 In October, the former State Administration for Industry and Commerce imposed a fine of 668 million yuan on Tetra Pak for abusing its dominant market position and implementing tying and other monopolistic behaviors.
The highest fine for local companies was 2065438+August 2004. Hubei Provincial Price Bureau fined FAW-Volkswagen 248 million yuan on the grounds that FAW-Volkswagen limited the vehicle sales price and maintenance service price.
The fine imposed on Ali tripled the record in one fell swoop.
However, Ali did not receive the most severe punishment. The reason for the high amount is that it has a large volume and a large denominator. Regardless of molecules, the above-mentioned American, Japanese and European enterprises are all high.
Article 47 of the Anti-Monopoly Law stipulates that if an operator abuses the dominant market position, the anti-monopoly law enforcement agency shall order him to stop the illegal act, confiscate the illegal income and impose a fine of more than 1% and less than 10% of the previous year's sales.
In judicial practice, it is difficult to confiscate illegal income, usually a fine. Qualcomm will be punished according to 8% of China's market sales in 20 13, Japanese enterprises such as mitsubishi electric will be punished according to 8%, 6% and 4% of last year's sales, and Tetra Pak will be punished according to 7% of China's market sales in 2013.
Ali's punishment standard is 4% of the sales in China in 20 19, which is actually very mild, but the sales amount is as high as 455.7 billion yuan. Ali's total revenue in fiscal year 2020 (April 19, June1-March 3 1) was 509.7 billion yuan, and its net profit was149.3 billion yuan. The fine was 654.38+0.82 billion yuan, almost one-eighth of the net profit.
However, compared with the counterparts in Europe and America, it is much less than 654.38+082 billion yuan (about 2.779 billion US dollars). From 20 17 to 20 19, the EU antitrust commission fined Google 8.25 billion euros (about 9.8 billion US dollars), and in 20 19, the US Federal Trade Commission fined Facebook 5 billion US dollars.
On February 24, 2020, 65438, the State Administration of Markets initiated an investigation into the alleged monopoly of Ali Group. On April 6th, 20021year, the General Administration of Market Supervision delivered the Notice of Administrative Punishment to Ali Group, which lasted for 103 days.
Even in China, antitrust cases usually take a long time to make a decision on punishment. Qualcomm case was investigated in June 20 13+0 1 year, and a fine was issued in February 20 15, which lasted 15 months; Mitsubishi electric case was investigated at the end of 20 1 1 and was closed in August of 20 14, lasting 2 years and 9 months; The tetra pak case lasted four years, from 20 12 to 20 16.
According to China's Administrative Punishment Law, if a party refuses to accept the above-mentioned administrative punishment decision, he may apply to the relevant administrative department for administrative reconsideration within 60 days from the date of receiving the administrative punishment decision; Or bring an administrative lawsuit to the people's court within 6 months from the date of receiving the decision on administrative punishment.
The administrative punishment decision of the General Administration of Market Supervision revealed that Ali admitted the punishment immediately after receiving the notice of punishment and gave up the right to state, defend and request a hearing.
On the morning of April 1 10, two hours after the announcement of the punishment decision of the General Administration of Market Supervision, Ali official Weibo issued an open letter, saying that he "sincerely accepted and resolutely obeyed" the punishment, expressing his "gratitude and awe" for the supervision and service of the government and the criticism and support from all walks of life.
Not only Ali, in the anti-monopoly cases listed in this article, the parties gave up their appeals after receiving the punishment results, but their attitude was sincere and profound, and Ali was the most important.
Even if you appeal, you have to pay a fine first. The Administrative Punishment Law stipulates that during the period of administrative reconsideration or administrative litigation, the decision on administrative punishment shall not be suspended.
Anti-monopoly cases in Europe and America are even more protracted, because their punishment procedures are different from those in China. In China, administrative organs can punish themselves, while in Europe and America, administrative organs perform the function of investigation. After closing the case, they brought the illegal parties to court and proposed a punishment plan to the court. After the court makes a judgment, it may execute the punishment. During this period, there will be repeated seesaw and appeals between different courts. Many cases ended in settlement, and the defendant paid the settlement money (disguised fine) to close the case. But there are also sky-high fines and centuries-old judgments, the most famous of which is that after eight years of litigation, the US Department of Justice won the lawsuit against AT & amp； T's antitrust lawsuit divided it into eight.
After reading through the administrative punishment decision of the General Administration of Market Supervision, I have the impression that the case of Ali was closed so quickly because the illegal facts were clear and the evidence was conclusive, which was easy to identify.
The penalty book shows that since 20 15, Ali abused his monopoly position to implement the "two in one" behavior. By prohibiting the operators in the platform from opening stores and participating in the promotion activities of other competitive platforms, the operators in the platform can only trade with the parties, and take various reward and punishment measures to ensure the implementation of the behavior, which violates the fourth item of Article 17 of the Anti-Monopoly Law.
In the penalty list of more than 3,000 words, Ali's abuse of market dominance is listed, and it is said that the above facts include the investigation and inquiry records of relevant personnel of the parties, internal nail group chat records, e-mails, cooperation agreements signed with some operators in the platform, development plans of various business departments, work summary, "double1"and "61"
In the Internet industry, violations of Article 17 of the Anti-Monopoly Law are usually unexpected, and the alternatives are typical. You can only sell things on my platform, participate in my promotion activities, use my software, and so on. If you don't listen, don't loiter on my website. If you don't hang it on my website, how can you hang it?
In Ali's view, the choice between the two is completely reasonable and normal market behavior. Wang Shuai, Chairman of the Public Relations Committee of Ali Market, said in Weibo on 20 19: The platform must invest a lot of resources and costs to organize the promotion activities, and it can only be tilted to the brand merchants who are most sincere and actively participate in the promotion activities. This is the simplest business rule.
Two-in-one is emerging in the Internet industry, especially in platform enterprises. The earliest alternative dispute was the 3Q war of 20 10. Tencent requires its users to uninstall 360 software, otherwise they cannot log in to QQ. After the prosperity of e-commerce, it has become an important place to choose between two. JD.COM v. Ali. Ali retorted. Haven't you ever used this trick? Wechat vs Alipay, Meituan vs Hungry, SF vs Rookie, the list goes on.
Because it was chosen many years ago, everyone enjoyed the ceremony. Why stop now? I agree with Shi Jianzhong, a member of the expert group for drafting the Anti-Monopoly Law and vice president of China University of Political Science and Law:
After more than 20 years of development, China's platform enterprises have entered the "youth" period from "children", and the business model and transaction structure of platform enterprises have initially taken shape. The damage to competition, innovation and consumer rights caused by the implementation of "two integrations", "killing big data" and "killing mergers and acquisitions" can be clearly identified. At the present stage of platform economy development in China, it is not only necessary but also feasible to start anti-monopoly law enforcement. It is necessary to pay equal attention to innovation, competition and consumer interests, strengthen anti-monopoly law enforcement in the field of platform economy, and promote the standardized development of platform economy.
For more than a decade, China's regulatory authorities have pursued the policy of "inclusive, prudent and flexible supervision" on the Internet industry, giving priority to innovation and development, and made great contributions to the rise of China's Internet industry. But the essence of an enterprise is profit-seeking, and there is no external constraint. Young dragon slayers will become dragons themselves.
In fact, since the General Office of the State Council issued the Guiding Opinions on Promoting the Healthy Development of Platform Economy in August, 2065438+2009, the trend of supervision has been changing. On June 3, 2020, 165438+ Ant Financial IPO was suddenly stopped, which marked a complete change in regulatory thinking. A week later, the General Administration of Market Supervision announced the Anti-monopoly Guide for Platform Economy (Draft for Comment). 65438+February 1 1, the Politburo meeting first mentioned "strengthening anti-monopoly and preventing disorderly expansion of capital". During this period, the State Administration of Market Supervision imposed administrative penalties on three merger cases involving Ali, Tencent and SF a few years ago because they failed to declare according to law. The General Administration of Market Supervision said: The Internet industry is not an anti-monopoly place.
The Anti-Monopoly Law regulates four forms of monopoly: monopoly agreement, abuse of dominant market position, concentration of operators and administrative monopoly. "Choose one from two" belongs to the second kind, but the monopolistic behavior in the market is far more than "choose one from two".
Today, is the ticket of 65.438+0.82 billion yuan the last time or the first time? Let's wait and see.