China: Publication of Platform Antimonopoly Guidelines

On 7 February 2021, the Antimonopoly Committee of the State Council of China issues the Antimonopoly Guidelines on Platform Economic Sector, which introduce specific antitrust rules for digital platforms. The rules are released with the aim of reducing monopolistic behaviour in the internet platform market in China. Originally published by the State Administration for Market Regulation (SAMR) on 10 November 2020, while at the same time opening a consultation period, the guidelines provide a definition of the relevant market (Art. 4.3) and what constitutes anti-competitive behaviour. Significantly, in certain cases, anti-competitive behaviour can be fulfilled even without a definition of the relevant market, especially when such a definition is difficult. Furthermore, the Platform Monopoly Guidelines also contain an MFN (most favoured nation) clause meaning that if platform operators require preferential treatment by other operators, this will be qualified as a monopolistic agreement and abuse of dominance. The guidelines explicitly refer to Art. 14.3 of the Antimonopoly Law (AML) and define such agreements as the thereunder mentioned vertical monopoly agreements. Also part of the Platform Monopoly Guidelines is the "choosing one from two" practice, which Alibaba is being investigated for at the moment. This practice is fulfilled, when a platform operator restricts operators from using other competitive platforms. Such behaviour will be qualified as abuse by exclusive dealing. Finally, Art. 17 of the Platform Antimonopoly Guidelines addresses discrimination by platform operators through big data. According to Art. 17, abuse of dominance is given, when a platform operator discriminates against its users with the help of big data and algorithms.