Foreign precedent is often referred to as guidance to construe newly introduced competition legislations. In these early stages of enforcement of China’s Antimonopoly Law, the absence of foreign consensus on the treatment of vertical restrictions makes it more challenging for companies to determine their supply and distribution policies in China.
The question is made complex by the apparent tension between the text of the Antimonopoly Law and the guidance issued by the enforcement authorities with regard to vertical restraints. On the one hand, contrary to what is the case in many foreign competition laws, the Antimonopoly Law contains a distinct prohibition on restrictive supply or distribution agreements, with an express prohibition on resale price maintenance. On the other hand, the Chinese administrative authorities have provided ample guidance on horizontal restrictions, but very limited discussion of vertical restraints, which might be a sign that vertical issues are not an enforcement priority.
Two developments this month may help bring some clarity to the issue.
In the first reported resale price maintenance judgment under the Antimonopoly Law, a court in Shanghai held that the plaintiff’s action could not succeed as there was no evidence of restrictive effects arising from the restriction on resale prices, in a case where the defendant had adduced evidence that it has no market power.
This comparatively lenient treatment of resale price maintenance is consistent with the final version of the Supreme People’s Court’s judicial guidance on private antitrust enforcement, which was released this month. Contrary to the Court’s proposed approach in its consultation draft last year, the final document does not institute a presumption that resale price restrictions have anticompetitive effects.
The above two developments only relate to vertical pricing restrictions, but they may foreshadow a pragmatic enforcement by the courts for all types of supply and distribution restrictions. Under this approach that relies on the economic effects of vertical restraints, restrictive effects are unlikely absent market power on the part of the supplier or the reseller.
The courts have not yet had the opportunity to rule on supply restrictions involving a party with market power. However, if they were to follow the approach adopted by the Ministry of Commerce’s Antimonopoly Bureau in its merger control decisions, one would expect a very stringent assessment of vertical restraints involving dominant players. As part of its prospective analysis of future competition conditions when reviewing merger transactions, the Ministry of Commerce has shown very significant concerns with foreclosure effects arising from vertical mergers involving dominant companies. The Ministry’s decision this month to subject its approval of the Google / Motorola Mobility transaction to conditions provides yet another illustration of this approach. The Antimonopoly Bureau’s concerns arise from Google’s position on the market for operating systems for smart mobile devices: due to its dominance on the market, any exclusivity or preferential treatment in Google’s supply of Android to Motorola Mobility is susceptible to restrict competition, according to the Ministry’s decision.