竞争法(双语)课程09-antimonopoly-law-5-实施课件.ppt

1、JUFE Yu Ling1Part 2Antimonopoly Law:Chinese PerspectiveJUFE Yu LingWhy has government been instituted at all?Because the passions of man will not conform to the dictates of reason and justice without constraint.Alexander HamiltonJUFE Yu LingLearning Objectives(1)Define Extraterritorial Application o

2、f AML(2)Compare Different Enforcement Models(3)Explain The Importance Of DeterrenceJUFE Yu Ling4Content1.Antimonopoly Law Jurisdiction 2.Enforcement Agencies3.ECs Current Overall Enforcement Results4.Investigation into the Suspicious Monopolistic Conducts5.Legal LiabilitiesJUFE Yu Ling5Chapter 6 Ant

3、imonopoly Law EnforcementJUFE Yu Ling1.Antimonopoly Law JurisdictionJUFE Yu Ling(1)About Enforcement1)Definition of enforcement(also called coming into force or enactment)refers to the process by which legislation,or part of legislation,and treaties come to have legal force and effect.2)General requ

4、irements To come into force,a treaty or act needs to receive the required number of votes or ratifications.Coming into force generally includes publication in an official gazette so that people know the law or treaty exists,which generally releases it into the public domain.JUFE Yu Ling(2)Antimonopo

5、ly Law Territorial Jurisdiction1)Generally speaking,antimonopoly law is a kind of municipal law.Article 2 This Law is applicable to monopolistic conduct in economic activities within the territory of the Peoples Republic of China.JUFE Yu Ling2)But more and more countries have endowed antimonopoly la

6、w with extraterritorial effect,such as the U.S.and EU.Extraterritorial jurisdiction is the legal ability of a government to exercise authority beyond its normal boundaries.JUFE Yu Ling3)Extraterritorial Application Of China ANL Article 2 This Law is applicable to monopolistic conduct outside the ter

7、ritory of the Peoples Republic of China that has the effect of eliminating or restricting competition on the domestic market of China.JUFE Yu Ling4)Extraterritorial Application Of U.S.Antitrust Lawa)1909-American Banana Co.v.United Fruit Co.,213 U.S.347(1909)Supreme Court first considers extraterrit

8、orial application of the Sherman Act and determines that strict territoriality applies.JUFE Yu Lingb)1945-United States v.Aluminum Co.of America(Alcoa),148 F.2d 416(2d Cir.1945)Second Circuit,acting as the court of last resort,rejects the strict territorial approach in American Banana.JUFE Yu Lingc)

9、III.1982-Foreign Trade Antitrust Improvement Act(FTAIA),15 U.S.C.6a Congress enacts FTAIA to clarify the extraterritorial application of the Sherman Act.FTAIA is designed to place limitations on the application of the Sherman Act in situations where U.S.commerce is not affected.JUFE Yu LingFTAIA sta

10、tes that Sections 1 through 7 of the Sherman Act will not apply to trade or commerce(other than import trade or import commerce)with foreign nations unless:such conduct has a direct,substantial,and reasonably foreseeable effect and such effect gives rise to a claim under the provisions of section 1

11、to 7 of the Sherman Act.JUFE Yu Lingd)2004-Hoffman-La Roche Ltd.v.Empagran S.A.,124 S.Ct.2359(2004)Plaintiffs were foreign purchasers that alleged they were injured by the defendant domestic and foreign vitamin manufacturers and distributors price fixing conspiracy.The plaintiffs argument that the F

12、TAIA exception requirement that the domestic effect at issue“gives rise to a claim”under the Sherman Act should be read literally and not require that it to give rise to the instant plaintiffs claim or the claim at issue.JUFE Yu LingThe Court held that Any ambiguity in the FTAIA should be construed“

13、to avoid unreasonable interference with the sovereign authority of other nations.”“It was unreasonable to apply our laws to foreign conduct where that the resulting foreign injury was independent of any domestic injury.”The court rejected the plaintiffs argument.JUFE Yu Ling(3)Antimonopoly Law Subje

14、ct-matter Jurisdiction1)Subject-matter jurisdiction is an authority over the subject of the legal questions involved in the case.2)AML Subject-matter Jurisdiction:cases related to monopolistic conducts fair competition in the market economic efficiency the interests of consumers and social public in

15、terest,socialist market economyJUFE Yu Ling3)the AML explicitly provides that the legislation is not applicable to a businesss lawful conduct in accordance with its legitimate IP rights.the ally or concerted actions of agricultural producers and rural economic organizations in the economic activitie

16、s such as production,processing,sales,transportation and storage of agricultural products.18JUFE Yu Ling2.Enforcement Agencies(1)The U.S.Enforcement Model1)In the United States,there are both state and federal antitrust laws.2)Enforcement of these laws takes 3 forms:a)The federal government,via both

17、 the AD and the FTC,can bring civil lawsuits enforcing the laws.DOJ alone may bring criminal antitrust suits under federal antitrust laws.(AT&T/Microsoft)JUFE Yu Lingb)State attorneys general may file suits to enforce both state and federal antitrust laws.c)Private civil suits may be brought,in both

18、 state and federal court,against violators of state and federal antitrust law.Federal antitrust laws,as well as most state laws,provide for treble damages against antitrust violators in order to encourage private lawsuit enforcement of antitrust law.20JUFE Yu LingWhy Congress Authorized Private Anti

19、trust Lawsuits?Hawaii v.Standard Oil Co.of Cal.,405 U.S.251,262(1972):Every violation of the antitrust laws is a blow to the free-enterprise system envisaged by Congress.This system depends on strong competition for its health and vigor,and strong competition depends,in turn,on compliance with antit

20、rust legislation.In enacting these laws,Congress had many means at its disposal to penalize violators.21JUFE Yu LingIt could have,for example,required violators to compensate federal,state,and local governments for the estimated damage to their respective economies caused by the violations.But,this

21、remedy was not selected.Instead,Congress chose to permit all persons to sue to recover three times their actual damages every time they were injured in their business or property by an antitrust violation.By offering potential litigants the prospect of a recovery in three times the amount of their d

22、amages,Congress encouraged these persons to serve as private attorneys general.22JUFE Yu Lingd)The federal government also reviews potential mergers to attempt to prevent market concentration.As outlined by the Hart-Scott-Rodino Antitrust Improvements Act,larger companies attempting to merge must fi

23、rst notify FTC and the DOJs AD prior to consummating a merger.These agencies review(first defining what the market is;then determining the market concentration using the HHI and each companys market share.The government looks to avoid allowing a company to develop market power,which if left unchecke

24、d could lead to monopoly power.23JUFE Yu LingThe Department of Justice building in Washington,D.C.is home to the United States antitrust enforcers.24JUFE Yu Ling(2)National competition authorities in EC1)EC Enforcement Agenciesa)European Commission(DG Competition)b)European Court of Justice25JUFE Yu

25、 Ling2)National competition authorities in ECa)United Kingdomthe Enterprise Act 2002;the Office of Fair Trading.b)France:Conseil de la Concurrencec)Germany:The German Federal Cartel Office,or Bundeskartellamtd)Italy:Autorit Garante della Concorrenza e del Mercato 199026JUFE Yu Ling(3)China:“1+3+X”En

26、forcement Model1)The AML specifies that the State Council shall create two new entities to develop and enforce the law:a)the Anti-Monopoly Commission(AMC):It does not have substantive enforcement powers.Its responsibilities include:formulating competition policies and guidelines,evaluating competiti

27、on conditions,and coordinating enforcement activities.b)the Anti-Monopoly Enforcement Agency(AMEA):has strong enforcement powers.27JUFE Yu Ling2)The enforcement powers of(AMEA)to inspect and investigate business and non-business premisesto obtain relevant evidence,such as seizing documents,accountin

28、g records,electronic data,and bank account records.the AMEA may even conduct all these enforcement actions without a court order.28JUFE Yu Ling3)China:“1+3+X”Enforcement Model29China EAAMC1AMEA3MOFCOMConcentration reviewNDRCPrice MAsSAICMAsAbusing market power Sector RegulatorsXJUFE Yu Linga)MOFCOM

29、is responsible for merger review.b)NDRC is responsible for monopoly agreements,particularly price-fixing issue.c)SAIC is responsible for abuses of dominant position.Some commentators have expressed concerns,and believe that the trinity enforcement model creates a complicated institutional framework

30、where conflicts are probable.30JUFE Yu Ling4)IP courts On July 31,2008,China announced that its specialized IP courts have jurisdiction over anti-monopoly law cases.As many commentators have pointed out,these courts are likely to be better equipped in dealing with complex economic concepts under com

31、petition law than Chinas general judiciary.“This also arguably provides a convenient avenue to deal with possible conflicts between IP law and the AML.31JUFE Yu Ling3.ECs Current Overall Enforcement Results(1)Powerful Investigatory Tools Dawn raids Compulsory requests of information Leniency applica

32、tions Ex-officio economic research(oligopolies)32JUFE Yu Ling(2)Successful EC LP for Corporations For amnesty or reductions,the EC is demanding upfront evidence which brings significant added value to the proceedings Better quality decisions,normally upheld by the EC Courts,result in higher fines an

33、d more deterrence vicious circle(3)Coordination between DG COMP and 27 Member States Has led to multiplication of efforts Harmonized leniency policy throughout EU(role of the ECN)33JUFE Yu Ling34JUFE Yu Ling35JUFE Yu LingJUFE Yu Ling4.Investigation into the Suspicious Monopolistic Conducts(1)The ant

34、imonopoly execution authorities investigate monopoly conducts according to law.Refers to antimonopoly conduct,any organization or person has the right to report to the antimonopoly execution authorities.The antimonopoly execution authorities shall keep the secret for the reporter.If the report is su

35、bmitted in written form and supplies related facts and proofs,the antimonopoly execution authorities shall conduct necessary investigation.JUFE Yu Ling(2)When conducting investigations,the antimonopoly execution authorities can take the following measures:(i)enter the premise or other related places

36、 of the undertakings being investigated;(ii)request the undertaking concerned,interested parties and other relevant organizations or persons being investigated to explain related circumstances;38JUFE Yu Ling(iii)exam,copy related documents and materials of the undertakings,interested parties and oth

37、er relevant organizations or persons being investigated,such as certificates,agreements,accounting books,letters and telegraphs of business,electronic data and so on.(iv)seal up or detain related proofs;(v)inquire about the bank account information of the undertakings concerned.Taking the measures s

38、tipulated above,shall be reported in written form to the chef person in charge of the antimonopoly execution authorities,and be approved.JUFE Yu Ling(3)Investigating the suspected monopoly conducts by the antimonopoly execution authorities,the executors shall be not less than two persons,and shall s

39、how the papers of execution.The executor conduct inquiring and investigating,shall fabricate written notes which are signature by the inquired or investigated person.The antimonopoly execution authorities and their staffs shall be obliged to keep the secret which known in the execution.40JUFE Yu Lin

40、g(4)The Responsibility and the Rights of Related PartiesUndertakings concerned,interested parties or other related organizations or persons being investigated 1)shall cooperate with the antimonopoly execution authorities by performing responsibility,shall not refuse or hinder the antimonopoly execut

41、ion authorities to investigate.2)have the right to state opinions.The antimonopoly execution authorities shall verify the facts,reasons and proofs being given by undertakings concerned,interested parties being investigated.41JUFE Yu Ling(5)AnnouncementAfter investigating and verifying the suspected

42、monopoly conducts,if the antimonopoly execution authorities believe that monopoly conduct was done,shall take decisions according to law and publish it.42JUFE Yu Ling(6)Business Operator Commitment Program1)Time:when a suspected monopoly conduct being investigated 2)Premise:if the undertakings being

43、 investigated promise that they will conduct concrete measures to eliminate the negative effect of the monopoly conducts within a time limit being acknowledged by the antimonopoly execution authorities3)Profit：the antimonopoly execution authorities shall decide to suspend the investigation/stop the

44、investigation43JUFE Yu Ling4)Enforcement:a)The decision to suspend the investigation shall note what concrete was promised by the undertakings being investigated.b)If the antimonopoly execution authorities decide to suspend investigation,shall supervision the circumstances in which undertakings perf

45、orm their promises.c)If the undertakings have performed the promises,the antimonopoly execution authorities shall decide to stop the investigation.44JUFE Yu Ling5)Regain the investigation(i)undertakings have not performed the promises;(ii)the fact being applied to suspend the investigation has signi

46、ficant changed.(iii)the decision to suspend the investigation is based on uncompleted or untruthful information being supplied by the undertakings.45JUFE Yu Ling5.Legal Liabilities(1)About MGs1)In case there exists monopoly agreement and is implemented by the undertakings in violation of this law,th

47、e antimonopoly execution authorities shall order the undertakings to cease such act,the illegal gains shall be confiscated,and a fine between 1%and 10%of the turnover in the preceding year shall be imposed;If the monopoly agreement is not implemented,a fine below 500,000 Yuan shall be imposed.46JUFE

48、 Yu Ling2)If the undertakings actively report the circumstance of the monopoly agreement to the antimonopoly execution authorities and supply important proofs,the antimonopoly execution authorities shall reduce or remit the fines according to own judgment.47JUFE Yu Ling3)If the association of undert

49、akings organize undertakings of the branch to reach monopoly agreement in violation of this law,the antimonopoly execution authorities shall impose a fine below 500,000 Yuan;and if the circumstances are serious,the social organization register administrative department shall dissolve the register.48

50、JUFE Yu Ling(2)About Abusing The antimonopoly execution authorities shall order the undertakings to cease such act,the illegal gains shall be confiscated,and a fine between 1%and 10%of the turnover in the preceding year shall be imposed.49JUFE Yu Ling(3)About ConcentrationIn case the undertakings co