The work of soliciting public opinions on the Anti-monopoly Guidelines for Trade Associations (Draft for Opinions) (hereinafter referred to as "Draft for Opinions") has been completed. The draft was drafted by the State Administration of Market Supervision and Administration to enhance the applicability of the Anti-monopoly Law of the People's Republic of China (hereinafter referred to as the "Anti-monopoly Law"), prevent trade associations from becoming monopoly leaders, prevent and stop trade associations from engaging in acts prohibited by the Anti-monopoly Law, and give full play to the positive role of trade associations in promoting the development of industry norms and maintaining market competition.
Trade associations should be the whistleblower and supervisors to avoid industry monopoly. However, in reality, due to the specific status of associations, loopholes in internal management system and lack of compliance management system, some trade associations have become the leaders and organizers of industry monopoly.
In order to prevent associations from participating in monopolistic acts, the Anti-monopoly Law was amended in 2022, in which Article 21stipulates that trade associations shall not organize operators of their own industries to engage in monopolistic acts. The general provisions of the draft
opinions clarify the definition of trade associations, requiring trade associations not to violate the anti-monopoly law and engage in acts of excluding or restricting competition. If the trade association is an operator, it can not engage in monopoly agreements, abuse of market dominance and illegal implementation of concentration of operators.
In the part of monopoly agreement, the draft clarifies the ways in which organizations reach monopoly agreements, including associations'charters, rules, decisions, notifications, opinions, standards, self-discipline conventions, agreements, resolutions, minutes, memorandums and coordinated acts; Disciplinary and incentive measures are clearly defined, including setting membership requirements, confiscating deposits, setting liquidated damages, restricting the rights and interests of members, canceling membership, notifying criticism, boycotting, suspending business activities, linking with member awards, third-party supervision, building supervision platforms, and setting up special supervision classes.
In addition, the draft specifies three kinds of high-risk behaviors that trade associations should avoid: promoting the exchange and discussion of competitively sensitive information or notifying competitively sensitive information among operators in the industry; Publish guiding prices such as guided prices, benchmark prices, reference prices, recommended prices and forecast prices in the industry, or formulate price calculation formulas for reference by operators in the industry; publish false or exaggerated market information such as cost trends, supply and demand conditions. Experts said: "The detailed provisions of the draft provide a supplement and improvement for the applicability of the anti-monopoly law."
In recent years, many trade associations have been punished for organizing and implementing monopoly agreements. Trade associations frequently illegally participate in or organize member units to engage in monopolistic acts prohibited by law, which fully exposes the internal governance problems of trade associations.
The reporter consulted the Annual Report of China's Anti-monopoly Law Enforcement issued by the State Administration for Market Regulation and found that in 2020, China investigated and dealt with seven monopoly agreements involving trade associations, involving 92 enterprises and imposing economic penalties of 77.64 million yuan; In 2021, anti-monopoly law enforcement agencies investigated and dealt with Jiangxi Fengcheng Ready-mixed Concrete Association and its member enterprises to reach and implement monopoly agreements, Shandong Zibo Lianhe Cement Enterprise Management Co., Ltd. and related enterprises to reach and implement monopoly agreements, and two commercial concrete production enterprises in Fengdu County of Chongqing to reach and implement monopoly agreements, involving an industry association and 18 enterprises. The fines for the three cases totaled 537 million yuan, accounting for about 1/3 of the fines for monopoly agreement cases in the whole year; in 2022, the anti-monopoly law enforcement agencies filed and investigated 18 monopoly agreement cases, and settled 16 cases, with a total fine of 569 million yuan, involving four industry associations.
To this end, the draft opinions put forward that trade associations should take advantage of the unique advantages of connecting the government and business entities, encourage and support trade associations to give full play to their self-discipline functions, strengthen their own anti-m onopoly compliance construction, and adopt industry rules, conventions and market autonomy rules to guide and help members to establish and improve anti-monopoly compliance management. Identify and prevent monopoly risks as soon as possible.
At the same time, the draft encourages industry associations to establish an effective anti-monopoly compliance management system, or to strengthen anti-monopoly compliance management in the existing compliance management system, including but not limited to the following measures: formulating a code of conduct for anti-monopoly compliance, establishing an anti-monopoly compliance commitment mechanism, and setting up anti-monopoly compliance departments or personnel. Establish a reward and punishment system for anti-monopoly compliance and strengthen anti-monopoly compliance training. Trade associations can identify actual and potential anti-monopoly risks according to legal provisions, industry characteristics and market conditions, and take corresponding preventive measure.
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