Lv Mingyu
Excerpt
Abstract
Essentials: The Euro***an competition law system is the most developed and perfect competition law among the regional international economic organizations at present. The anti-monopoly system established by it integrates the characteristics of the common law system and the civil law system, absorbs the essence and advantages of the two legal systems, and has important reference significance for China's anti-monopoly legislation.
Keywords: European **** body competition law antitrust legislation
The European **** body (hereinafter referred to as the European **** body) competition law system with the core of anti-monopoly and anti-restriction of competition is the most developed and perfect competition law in the current regional international economic organizations. In the process of China's anti-monopoly legislation, it is of special significance to study and learn from the competition law of the E*** body. This is because, firstly, the competition law of the E*** body integrates the characteristics of the common law system and the civil law system, absorbs the essence and advantages of the two legal systems, and facilitates China's anti-monopoly legislation to be on a par with that of the rest of the world; secondly, in the member states of the E*** body, the state-owned enterprises occupy a considerable proportion of the entire national economy, and the state's influence on the market economy is very important. Secondly, in the European *** body member states, state-owned enterprises in the national economy as a whole accounted for a considerable proportion of the degree of state intervention in the market economy is relatively large, and China's national conditions are closer, easier for our country to learn and learn.
One, the European **** body competition law system
European **** body competition law is basically synchronized with the formation of the European **** body itself. As early as the Treaty on the European Coal and Steel Pool (ECSP), which established the coal and steel pools, there were provisions relating to the protection of competition, and by the time of the Treaty of Rome, which established the Euratom and the Euratom, the legal provisions for the protection of competition had already become a major part of the Treaty. Subsequently, a series of separate acts and implementing rules on competition were enacted by the EEA as needed. Over the long term, judicial precedents dealing with competition disputes have further enriched the content of the competition law regime from different perspectives. Examining the overall development of competition law in the EEA, it can be seen that it mainly consists of the following four parts: the provisions on the protection of competition in the Treaty on European Coal and Steel Pooling, which are mainly related to the restriction of competition, concentration of enterprises, and undue pricing practices, etc.; the basic rules of the competition law established in the Treaty of Rome, which mainly include the principle provisions on the restrictive business practices and abuse of dominance and other behaviors, as well as special The basic rules of competition law established in the Treaty of Rome mainly include the principle provisions on restrictive business practices and abuse of dominant position, as well as special prohibitions; the competition legislation adopted by the Council of Ministers of the E*** Body, mainly including the implementing regulations for the implementation of the competition rules in the Treaty of Rome and the individual decrees based on the solution of new problems of competition in the **** Body market; and the decisions and jurisprudence of law enforcement agencies for enforcing the competition law, including the decisions of the Commission for the investigation and handling of competition cases, as well as the jurisprudence of the Court of Justice of the E*** Body for adjudicating competition disputes. The decisions and jurisprudence of law enforcement agencies in enforcing competition law include mainly the decisions of the European Commission investigating competition cases and the jurisprudence of the European Court of Justice hearing competition disputes.
The aforementioned four parts of the competition law of the EEA have established the basic system and principles of competition law, including the system of substantive competition law, the system of procedural competition law, the principle of the legal effect of competition law, and the principle of coordination and cooperation between different competition law norms.
Second, the European **** body competition law features analysis
Through the examination and analysis of the European **** body competition law, the author believes that its main features of the following aspects:
(a) to protect the European **** body *** with the main theme of fair competition in the market
The European **** body as a political and economic bloc of the major capitalist countries in Western Europe, since its inception, has been seeking to **** body competition law in Europe, and has been the first time to protect the European **** body competition law in the market. Since its establishment, it has been seeking to establish a ****similar economic market within the Euro*** body, gradually transforming the relatively divided multinational market into a supranational and fully competitive market, eliminating the restrictions and undue influence of national borders and economic organizations on the market, and realizing the free circulation of commodities, people, labor and capital among member countries. Through unremitting efforts, a customs union, an economic and monetary union and a ****same agricultural policy have been realized in Europe***. Based on this objective requirement, the competition law system of the European *** body from the formation to the development, from the formulation to the application, has always been to protect the fair competition in the European *** body *** with the market for the purpose of stopping unfair competition as one of the important means of safeguarding the overall interests of the market of the European *** body *** with the whole legislative activities are mainly centered on the establishment and development of a unified and open, smooth and free of charge, the European *** body *** market this goal. The legislative provisions focus on the suppression of unfair competition that may affect trade among member countries and hinder competition within the ****common market, and the elimination or mitigation of the harm caused to the ****common market by such acts as monopoly, trade barriers and restriction of competition. For acts of unfair competition that do not conflict with the ****same market but only affect the domestic market of a member country, the competition rules of the ****same country shall not be applied and shall be regulated by the domestic law of the member country. However, if the legal and economic effects of such acts of unfair competition are of a long-term nature, their cumulative effect may still be considered to affect the interests of the *** same market and the competition rules of the Community may be applied.
(2) Enterprise as an important legal subject
European **** body competition law will be engaged in business activities, direct participation in the market as an important rights and obligations of the enterprise as the main body, the law prohibits, such as restrictive business practices, abuse of dominant position, mergers, inappropriate price practices and other acts of unfair competition are mostly enterprises, the law enforcement agencies are mostly a certain enterprise or enterprise organization as its investigation and punishment. Enterprise organizations as the object of investigation and punishment, the responsibility of unfair competition directly by the implementation of this act of a particular enterprise or enterprise organization to bear [2] (P274). And some competition legal system among international, such as the World Trade Organization in the competition legal system, is the state and the government as an important subject, such as reducing tariffs, the elimination of non-tariff barriers and so on the subject of obligations is the government of the contracting parties, rather than enterprises.
(C) Competition law exemptions for state-owned enterprises to be strictly controlled
State-owned enterprises, as an instrument of national economic policy, are often subject to special exemptions in competition law. However, based on the need to establish a large market in Europe, the competition law in Europe has strictly limited the exemptions of state-owned enterprises, and the state-owned enterprises in Europe are in principle subject to the same competition rules as private enterprises. Although the EEA also exempts State-owned enterprises and other enterprises enjoying privileges or exclusive rights from the application of the EEA competition rules in the performance of special tasks entrusted to them, it also requires that such exemptions do not affect the development of trade or the interests of trade within the EEA. In fact, such a provision imposes on the member States an obligation not to apply to such State-owned enterprises or enterprises enjoying privileges any measures deviating from the *** Community Treaty, and in particular from the rules of competition, and the member States may be held to be in breach of the Treaty if the breach of the Treaty by the State-owned enterprises is the result of the adoption by the member States of special measures in respect of them, such as the granting of privileges or exclusive rights. In judicial practice, the Commission and the Court of Justice of the EEA have in turn given a strict interpretation to the provisions on the immunity of SOEs. Therefore, it is extremely difficult for state-owned enterprises in the EEA to obtain exemptions from competition law[2] (P250).
(4) Focus on the adjustment of monopoly and restriction of competition
Unlike the Paris Convention for the Protection of Industrial Property in which the competition law system mainly adjusts the narrowly defined unfair competition, the competition law of the European *** body focuses on the adjustment of monopoly and restriction of competition, from the European Coal and Steel Pooling Treaty and the Treaty of Rome to the newly enacted merger law, all focus on the monopoly and restriction of competition. From the European Coal and Steel Pool Treaty and the Treaty of Rome to the newly enacted single decree on mergers, all of them focus on making clear provisions on monopoly and restriction of competition. The Council of the European Communities has issued a number of targeted rules and regulations to implement these provisions, which naturally fall mainly within the scope of antimonopoly and restriction of competition. These laws, together with the decisions and jurisprudence of the Commission and the Court of Justice of the European Communities in cases of monopoly and restriction of competition, constitute a relatively complete and unified antitrust and restriction of competition law in the European Communities.
(V) Implementation of the Principle of Dual Effectiveness of Domestic and Extraterritorial Measures
The competition law of the E*** body has dual effectiveness of domestic and extraterritorial measures. First of all, the competition rules of the EEA are applicable to the whole *** same market of the EEA and have a higher effect than the domestic laws of the member states. Member States may apply E***em's competition law directly as part of their domestic law, and when the provisions of the domestic law of a member State are inconsistent with the E***em's competition law, priority should be given to the application of the E***em's law. Secondly, E***omic competition law has certain extraterritorial effects, i.e., E***omic competition law applies not only to undertakings within the E***omic community, but also to undertakings established outside the E***omic community that have an impact on commercial trade in the E***omic community, while restrictive business practices that may have an impact in the *** same market, notwithstanding the fact that one party is not an undertaking of a member state of the ****omic community, the ****omic community law shall have jurisdiction over them. This extraterritorial effect is more clearly demonstrated in the decisions of the ****commonwealth Commission dealing with competition cases or in the jurisprudence of the ****commonwealth Court of Justice in competition disputes.
Three, the European *** body competition law on China's anti-monopoly legislation
Study to anti-monopoly and anti-restriction of competition as the core of the European *** body competition legal system, China's anti-monopoly legislation has the following important insights:
(a) should be to promote the integration of the national market, the protection of fair competition as the anti-monopoly legislation as China's important policy objectives
As mentioned earlier, one of the important features of the European **** body competition law is that it has always been to break down the economic barriers between national boundaries, to promote the integration of the European **** body market, to protect the fair competition in the European **** body market as its most important policy objectives, thus making an important contribution to the establishment and development of a large market in the European **** system as well as to the prosperity of the economy of the European **** body and the integration of politics. China's market system is in the establishment, cultivation and development of the period, the current situation of the market and openness, unity, competition and full of objective requirements there is still a great distance. For institutional reasons, administrative monopolization in China's current economic life is widespread and seriously harmful, manifesting itself prominently in sectoral and industrial divisions and regional blockades. Some sectors and industries operate exclusively on the basis of their industry or sectoral advantages, depriving non-sectoral and sectoral market players of the opportunity for fair competition, creating disparities between the economic conditions of sectoral and sectoral operators and those of other operators, and seriously jeopardizing fair competition. Some local governments, starting from narrow local protectionism, adopt all kinds of unreasonable means, create obstacles, restrict inter-regional economic and trade exchanges, cut off inter-regional resource links, and artificially create inequality between local and foreign enterprises, which seriously affects the establishment and development of China's effective competitive market model, and even jeopardizes the interests of consumers and the public. Market economy is a market-centered form of economy to allocate resources, which requires all factors of production to flow freely in the market and achieve optimal allocation through fair competition, which requires the establishment of an open, unified and fully competitive national market. Therefore, our country should learn from the legislative experience of the European *** body's competition law in establishing and maintaining market unity, take the promotion of national market integration and the protection of fair competition as an important task of anti-monopoly legislation, and, through legislation, stop the government and its subordinate departments from abusing their administrative power to engage in regional blockades and monopolization of industries and sectors, and stop the abuse of their dominant position in the market by public enterprises and their enterprises with privileged status from restricting competition, and Breaking down barriers to resource flows between regions, eliminating artificial market segmentation, creating an institutional environment for the existence of the market itself, providing favorable conditions for the improvement of the efficiency of resource allocation, and promoting the healthy development of the socialist market system.
(ii) China's anti-monopoly legislation should adopt the principle of low legislation
On the regulation of market monopoly structure, the anti-monopoly laws of various countries have taken different positions, and accordingly divided into the anti-monopoly law of the principle of high legislation and the principle of low legislation. Under the principle of high legislation, monopoly and oligopoly are strictly limited or prohibited, and monopoly status or market dominance itself is regarded as illegal and controlled, such as the Sherman Act of the United States, which adopts the principle of high legislation. Under the principle of low legislation, monopoly and oligopoly are allowed to exist, and monopoly or market dominance itself is not illegal, and the law will control only when the actor abuses the monopoly or market dominance to destroy competition. The competition law of the European *** body adopts this principle of low legislation, according to the provisions of Article 85 of the Treaty of Rome, in the European *** body, the dominant position itself is not illegal, especially the dominant position of the enterprise within its member state, *** body law is not to intervene, only when the enterprise abuses the dominant position due to dominance, which affects the trade between the member states, then it is prohibited by the competition law of the *** body [4]. Prohibition of competition law [4] (P120). In China, according to the current situation that the scale and economic concentration of enterprises are not high, and the decentralized and inefficient operation restricts the economic development, deepening the reform, promoting the competition, improving the economy of scale and industry concentration, and establishing the market operation mechanism of effective and fair competition should become the important macro-competitive policy in China in the medium and long term, expanding the average size of enterprises, realizing the benefit of economy of scale, and enhancing the international competitiveness of enterprises, which is important for China's The development of market economy at the present stage is of great significance. Therefore, China's anti-monopoly law should draw on the principle of low legislation of the European *** body, allowing the legal existence of monopoly or market dominance, and only restricting or prohibiting the abuse of monopoly or market dominance to undermine competition, so as to make the anti-monopoly law better reflect China's national conditions.
(3) Giving China's anti-monopoly law a limited extraterritorial effect
With the increasingly close international trade relations, especially the rapid development of multinational corporations, the world economy has shown a very strong integrity, and the global scale has formed a situation that affects the whole body in one hair's breadth. Monopolization or restriction of competition in foreign or international markets often affects competition in the domestic market, and sometimes the harm is quite serious. Therefore, the competition laws of many countries provide for their own extraterritoriality, i.e. the scope of application of the competition law can be extended to foreign countries. The U.S. antitrust laws and the European *** body competition law is a typical representative of this principle of extraterritorial application, but the two extraterritorial application of the specific provisions of the differences, mainly manifested in the following: the U.S. antitrust laws of the extraterritorial effect is complete, the law provides that if the purpose of the behavior is intended to and does bring a harmful effect to the U.S. business, then even if the behavior is carried out outside the U.S. by a foreign citizen or company, is also considered a violation of the antitrust laws. considered a violation of the antitrust laws. At the same time, extraterritorial jurisdiction may be exercised regardless of whether a foreign corporation has a parent or subsidiary in the United States, and regardless of whether it conducts business activities, as long as its actions have an impact on U.S. interests. Once the United States authorities have declared jurisdiction, the enterprise concerned must submit to an "investigative" process. The United States authorities can go to a foreign country to directly collect the information needed for the investigation and litigation, can request or even order the provision of documents in a foreign country or summon witnesses in a foreign country to appear in court to testify, can order any enterprise that admits to violating the antitrust laws to take measures to put an end to the illegal acts, and can sentence the defendant to bear the triple responsibility for the damages. However, the extraterritorial application of U.S. antitrust laws has triggered disputes with many countries. Countries under investigation by the U.S. believe that some of the U.S. practices have affected their domestic public **** order, interfered with their economic policies, and even undermined their national sovereignty, and in the case of ineffective protests against the U.S., a number of countries have enacted retaliatory legislation to resist the extraterritorial effects of U.S. antitrust laws. For example, Australia, New Zealand, the Netherlands, the United Kingdom, Canada, France and other countries have successively enacted such legislation, which, on the one hand, impedes the "investigation" of the U.S. authorities and prohibits the provision of certain documents or information, especially those involving national economic secrets, and on the other hand, prevents the enforcement of U.S. judgments, thus making the extraterritorial application of the U.S. antitrust laws meet with great difficulties. great difficulties. Unlike the United States, the extraterritorial effect of competition law in the Eu***om is subject to the restriction that when the competition law is applied to a company outside the Eu***om, the company must have a parent company or a subsidiary in the Eu***om[5]. This provision essentially treats the parent company and the subsidiary company as a unified economic entity, regardless of whether the subsidiary company or branch company has the qualification or status of an independent legal entity respectively, as long as the subsidiary company or branch company is under the actual control of its parent company or head office in its operation, it can be regarded as the same economic entity for the application of the competition law in the Eu*** body. In comparison, the approach of the European *** body is more feasible, which not only overcomes the difficulties and obstacles of extraterritorial investigation and evidence collection and enforcement, but also avoids confrontation with foreign governments, greatly reduces the difficulty in determining the facts and enforcing the judgment, increases feasibility, and is conducive to the realization of the extraterritorial effect of the competition law. In view of the fact that China's market is increasingly becoming an arena for many large international enterprises to compete in, when carrying out anti-monopoly legislation, we should learn from the "same economic entity rule" in the extraterritorial application of European *** body competition law, and give China's anti-monopoly law extraterritorial effect at the same time, stipulate the limitations of the extraterritorial application of the anti-monopoly law, emphasize the extraterritorial application, but also pay attention to the application of the domestic market with the domestic market, and the extraterritorial application of the competition law. It emphasizes both the extraterritorial application and the connection between such application and the domestic market, and tries to avoid or minimize disputes with other countries due to the extraterritorial application of the antitrust law. It should be noted that, due to the foreign and international competition law extraterritorial effect of the provisions of the objective existence, regardless of the principle of extraterritorial application is reasonable, should be based on the need to be "borrowed" in our antitrust law, otherwise, we will be in a unilateral passive position.
(D) should make China's antitrust law and international competition law.
European **** body competition law, as an important part of international competition law, not only plays an important role in international trade, but also has an important impact on the domestic legislation of the member states of the European **** body and the competition legislation of other regional international organizations, and its content reflects, to a certain extent, the requirements and achievements of the international anti-monopoly and anti-restriction of competition. Therefore, when carrying out China's antimonopoly legislation, we should analyze and study the adjustment methods adopted and the principles and systems established by the competition laws of the EEA in regulating restrictive business practices, abuse of dominant market position, mergers and other anticompetitive behaviors, and select the reasonable elements suitable for China's national conditions to draw on. For example, the European *** body competition law on restrictive business practices, the use of enumerating the main forms of manifestation to be prohibited and supplemented by exceptions to the adjustment method, so that the kind of restrictive behavior of the legal provisions of the operation, but also to adapt to the complexity of the changing situation; the European *** body competition law provides that the superiority of enterprises in itself is not a violation of the law, and only when the abuse of dominance by enterprises affects the fair competition will be subject to the prohibition of the law of competition, this legislation can make both the superiority of enterprises to affect fair competition. This kind of legislation not only can make the abuse of dominant position to restrict competition be controlled and sanctioned, but also is conducive to the normal play of the effect of economies of scale of enterprises; European **** body competition law around the merger of enterprises to establish the enterprise market turnover based on the statutory limit of the system of ex ante declaration, ex post notification system and sanctions for violation of the law system, a better embodiment of the merger of enterprises affecting the competition beforehand, prevention, supervision and ex post processing of mergers and acquisitions. The integrated regulation of prevention, supervision and post-treatment of mergers affecting competition has played a positive role in effectively preventing monopolization caused by mergers, and so on. The study and reference of such successful experiences in the competition laws of European countries will not only make China's anti-monopoly legislation as reasonable and scientific as possible from the content to the technology, but also help to make China's anti-monopoly law conform to the international practice and connect with the international anti-monopoly law, so as to protect the fair competition in China's market in a more comprehensive and more effective way and to promote the exchange of the international economy and technology, so as to make China's market economy better connected with the world economy. The Chinese market economy will be better connected with the world economy.
References:
[1] Treaty of Rome on the Establishment of the European Economic ****similarity and the European Atomic Energy ****similarity.
[2] Wang Xiaoye. Research on Competition Law [M]. Beijing: China Law Press, 1999.
[3] Ruan Fangmin. Competition Law in the European Union [M] Beijing: China University of Political Science and Law Press, 1998.
[4] Cao Tiansiu. Theory and Practice of Modern Competition Law [M]. Beijing: Law Press, 1993.
[5] Wang Chuanhui. Control of Transnational Merger Activities in Foreign Competition Law[J]. Shandong: Shandong Law, 1996,(1).
Note: This article was published in Economist (Chinese core journal), No. 8, 2003.