Recently, the Anti-Monopoly and Anti-Unfair Competition Committee of the State Council (hereinafter referred to as the Committee) formulated and promulgated the Anti-Monopoly Guidelines for Trade Associations.
The content shows that trade associations shall not set commodity prices or restrict their independent pricing power for the operators of the industry in the name of price self-discipline, industry rectification and market order maintenance. Operators in the industry shall not be organized to fix or change the price level, the range of price changes, the profit level or other expenses such as discounts and handling fees, and agree to adopt the standard formula, algorithm and platform rules for calculating prices.
Trade associations shall not make decisions on the quantity of commodity production or sales, such as reducing production, stopping production, setting production quotas or proportions, limiting supply, stopping sales, etc., nor shall they organize the operators of the industry to limit the quantity of commodity production by limiting output, fixing output, stopping production, etc. Limit the quantity of goods sold by limiting the quantity of goods put in.
The trade association shall not organize the operators of the industry to divide the sales areas, sales targets, market shares, sales revenue, sales profits or the types, quantities and time of the commodities sold, nor shall it organize the operators of the industry to divide the procurement areas, suppliers, types, quantities and time of raw materials.
The original text is as follows:
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Article 2" Basic Concepts
The term "trade association" as mentioned in this Guide refers to a social organization legal person composed of economic organizations and individuals in the same industry and exercising the functions of industry service and self-discipline management.
Trade associations are mainly composed of operators with competitive relations, and may also include upstream and downstream operators, or operators with other business contacts. Article
3 Generally requires
trade associations to strengthen industry self-discipline, guide operators of the industry to compete according to law, operate in compliance with regulations, and maintain market competition order.
Trade associations shall not engage in acts of eliminating or restricting competition in violation of the provisions of the Anti-monopoly Law. Article
4 General Provisions
on Prohibiting Organizations from Engaging in Monopoly Agreements Organizing operators of the industry to engage in monopoly agreements is the main manifestation of trade associations violating the Anti-monopoly Law. Trade associations shall not, in violation of the provisions of Article 21 of the Anti-monopoly Law, organize operators of their own industries to engage in monopoly agreements. The term "engaging in" as mentioned in the
preceding paragraph includes the conclusion and implementation of monopoly agreements. Article
5 Form
of Monopoly Agreements Monopoly agreements refer to agreements, decisions or other concerted actions that exclude or restrict competition.
Agreements and decisions can be written, oral and other forms.
Other concerted acts refer to the acts in which the operators have not explicitly concluded agreements or decisions, but in essence have coordinated acts, except for the parallel acts such as price following made by the operators concerned on the basis of independent expression of will. Article
6 Horizontal Monopoly Agreements
Trade associations shall not organize operators with competitive relations in their respective industries to reach the following monopoly agreements prohibited by Article 17 of the Anti-monopoly Law:
(1) Fixing or changing the prices of commodities or services (hereinafter referred to as commodities). Trade associations shall not set commodity prices or restrict their independent pricing power for the operators of the industry in the name of price self-discipline, industry rectification and maintenance of market order, nor shall they organize the operators of the industry to fix or change price levels, price changes, profit levels or discounts, handling fees and other expenses. It is agreed to adopt the standard formula, algorithm, platform rules, etc. According to which the price is calculated.
(2) limiting the quantity of goods produced or sold. Trade associations shall not make decisions on the quantity of commodity production or sales, such as reducing production, stopping production, setting production quotas or proportions, limiting supply, stopping sales, etc., nor shall they organize the operators of the industry to limit the quantity of commodity production by limiting output, fixing output, stopping production, etc. Limit the quantity of goods sold by limiting the quantity of goods put in.
(Three) dividing the sales market or the raw material procurement market. The trade association shall not organize the operators of the industry to divide the sales areas, sales targets, market shares, sales revenue, sales profits or the types, quantities and time of the commodities sold, nor shall it organize the operators of the industry to divide the procurement areas, suppliers, types, quantities and time of raw materials.
(Four) restrict the purchase of new technologies and new equipment or restrict the development of new technologies and new products. Trade associations shall not organize operators in the industry to restrict the purchase, use, lease, investment, research and development of new technologies, new processes, new equipment and new products, or refuse to use new technologies, new processes, new equipment and new products.
(5) boycott of transactions. Trade associations shall not organize operators of their own industries to jointly refuse to supply or sell goods to specific operators, jointly refuse to purchase or sell goods of specific operators, or jointly restrict specific operators from trading with their competitive operators.
(6) Other monopoly agreements recognized by the Anti-monopoly Law Enforcement Agency of the State Council. Article
7 Vertical Monopoly Agreements
An industry association shall not organize the operators of the industry to reach the following monopoly agreements prohibited by Article 18 of the Anti-monopoly Law with the counterpart of the transaction:
(1) Fixing the price of reselling commodities to a third party. Trade associations shall not organize operators of their industries to fix the price level, price change range, profit level or other expenses such as discounts and handling fees for resale of commodities to third parties.
(2) setting the minimum price at which a commodity may be resold to a third party. The trade association shall not organize the operators of the industry to limit the minimum price of the goods resold to a third party, or limit the minimum price of the goods resold to a third party by limiting the range of price changes, profit level or discounts, handling fees and other expenses.
(3) Other monopoly agreements recognized by the Anti-monopoly Law Enforcement Agency of the State Council.
For the agreements specified in Items 1 and 2 of the preceding paragraph, if the trade association or operator can prove that the agreement does not have the effect of eliminating or restricting competition, it shall not be prohibited. If
an operator can prove that its market share in the relevant market is lower than the standard prescribed by the Anti-monopoly Law Enforcement Agency of the State Council and meets other conditions prescribed by the Anti-monopoly Law Enforcement Agency of the State Council, it shall not be prohibited. A
trade association shall not organize the operators of the trade to reach a monopoly agreement through the following acts:
(1) To formulate and promulgate the articles of association, rules, decisions, notices, opinions, standards, Self-discipline conventions, etc.;
(2) Convening, organizing and promoting the undertakings to reach agreements, resolutions, minutes, memorandums, etc. Containing the contents of eliminating or restricting competition in written or oral forms through meetings, e-mails, telephone calls, letters, instant messaging tools, etc.;
(3) To convene, organize and promote the concerted acts of business operators to eliminate or restrict competition through meetings, e-mails, telephone calls, letters, instant messaging tools, etc., although no agreement or decision has been concluded;
(4) The acts of other business operators to reach monopoly agreements.Article
9 Circumstances under
which a trade association organizes the implementation of a monopoly agreement a trade association shall not organize the operators of the trade to implement a monopoly agreement through the following acts:
(1) setting requirements for membership, confiscating deposits, setting liquidated damages, restricting the rights and interests of members, canceling membership, circulating a notice of criticism, Joint boycott, suspension of business activities and other disciplinary measures to force business operators to implement the monopoly agreement;
(2) take incentive measures such as linking the implementation of the monopoly agreement with the member award and evaluation first to guide business operators to implement the monopoly agreement;
(3) The trade association itself or through a third-party organization shall supervise and monitor the implementation of the monopoly agreement by the business operators;
(4) The trade association shall take such safeguard measures as setting up a platform, setting up a special class, and establishing a coordination mechanism to provide convenient conditions for the business operators to implement the monopoly agreement;
(Five) the implementation of monopoly agreements by other organizations and operators. Article
10 High-risk behavior
trade associations shall avoid engaging in the following acts that may provide convenient conditions for the operators of the industry to reach and implement monopoly agreements:
(1) Promoting the operators of the industry to exchange or discuss competitively sensitive information or notify competitively sensitive information;
(2) to promulgate guided prices, benchmark prices, reference prices, recommended prices, forecast prices, etc. Within the industry, or to formulate price calculation formulas for reference by the operators of the industry, and to guide the operators of the industry to coordinate commodity prices;
(3) Publish false or exaggerated market information such as cost trends, supply and demand conditions, and guide operators in the industry to coordinate commodity prices. The term "competition-sensitive information" as mentioned in the
preceding paragraph refers to information closely related to market competition, such as the cost, price, discount, quantity, quality, turnover, profit or profit margin of commodities, as well as the research and development, investment, production, marketing plan, customer list and future business strategy of operators. However, information that has been publicly disclosed or can be obtained through public channels is excluded. Article
11 Monopoly agreements exempt
trade associations from organizing monopoly agreements reached by operators in their own industries shall not be prohibited if they meet the circumstances and conditions stipulated in Article 20 of the Anti-monopoly Law.
Trade associations may provide guidance to the operators of the industry on whether the monopoly agreement meets the circumstances and conditions stipulated in Article 20 of the Anti-monopoly Law, and support the operators of the industry to apply for exemption to the anti-monopoly law enforcement agencies. Article
12 As
an operator of a trade association, when a trade association engages in commodity production, operation or provision of services and belongs to the operators specified in Article 15 of the Anti-monopoly Law, it shall not violate the provisions of the Anti-monopoly Law, engage in monopoly agreements, abuse its dominant market position or illegally implement concentration of operators. Article
13 Trade associations that abuse administrative power to exclude or restrict competition
and are authorized by laws and regulations to manage public affairs shall not violate the provisions of Chapter V of the Anti-monopoly Law. Abuse of administrative power to implement restricted transactions, hinder operators from entering relevant markets or implement unequal treatment to operators by signing cooperation agreements or memorandums, hinder the free circulation of commodities, exclude or restrict operators from participating in bidding and other business activities, restrict or force operators to set up branches, and force operators to engage in monopoly. To formulate regulations containing the content of excluding and restricting competition and other acts of excluding and restricting competition. Article
14 Trade associations assisting administrative organs in abusing their administrative power to exclude or restrict competition
shall not be based on the requirements or entrustments of administrative organs, or by jointly formulating and issuing regulations, measures, decisions, announcements, notices, opinions, letters and minutes of meetings with administrative organs, signing cooperation agreements and memorandums, etc. To assist administrative organs in abusing administrative power to exclude and restrict competition. Article
15 When examining
fair competition, trade associations authorized by laws and regulations with the functions of managing public affairs formulate normative documents, other policy documents and specific policies and measures in the form of "one case, one discussion" concerning the economic activities of business entities, trade associations shall be subject to fair competition. Fair competition review shall be conducted in accordance with the requirements of the Anti-monopoly Law and relevant provisions to assess the impact on market competition and prevent exclusion and restriction of competition. Article
16 Self-discipline and compliance advocate that
trade associations should take advantage of the unique advantages of connecting the government and business entities, give full play to their functions of providing services, reflecting demands and standardizing behavior, and promote the healthy and sustainable development of industry norms.
Encourage and support industry associations to give full play to their self-discipline functions, strengthen their own anti-monopoly compliance construction, adopt industry rules, conventions and market autonomy rules, guide and help members to establish and improve anti-monopoly compliance management system, and identify and prevent anti-monopoly compliance risks as soon as possible. Article
17 Internal Compliance Management
Industry associations shall strengthen their internal compliance management and avoid engaging in or being controlled and utilized by their members to engage in acts that violate the Anti-monopoly Law and undermine the order of market competition. Industry associations are encouraged 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:
(1) formulating an anti-monopoly compliance code of conduct;
(2) establishing an anti-monopoly compliance commitment mechanism;
(3) Setting up an anti-monopoly compliance department or personnel;
(4) Establishing an anti-monopoly compliance reward and punishment system; and
(5) Strengthening anti-monopoly compliance training. Article
18 The industry association for the identification and control
of compliance risks may identify the actual and potential anti-monopoly compliance risks according to the provisions of laws, the characteristics of the industry and the market situation, and take corresponding preventive measures. Trade associations are
encouraged to examine whether they are suspected of violating the Anti-monopoly Law and relevant provisions when formulating and revising their articles of association, rules, decisions, notices, opinions, standards and self-discipline conventions. Those suspected of violating the above legal provisions shall not be released or adjusted to meet the requirements. Trade associations are
encouraged to establish an anti-monopoly compliance reporting mechanism to facilitate the reporting of suspected violations of the Anti-monopoly Law by their staff and members, and to promise to keep the information of the informants confidential and not to take any adverse measures against the informants. Article
19 Strengthen communication
and encourage trade associations to take the initiative to communicate with anti-monopoly law enforcement agencies, provide materials such as market competition and operators of the industry, and put forward suggestions for strengthening and improving anti-monopoly law enforcement.
Anti-monopoly law enforcement agencies and their staff shall have the obligation to keep confidential the business secrets, personal privacy and personal information they know in the course of law enforcement. Article
20 To strengthen compliance guidance
, trade associations may prevent and stop members from engaging in acts in violation of the Anti-monopoly Law in the following ways:
(1) to guide members to strengthen anti-monopoly compliance management;
(2) Conduct anti-monopoly compliance training for members, and remind members not to engage in monopolistic acts using the industry association as a platform or media;
(3) Take measures such as warning, notification and cancellation of membership to educate and punish members when they are found to be suspected of engaging in illegal acts such as monopolistic agreements;
(4) Other measures to guide members to strengthen anti-monopoly compliance. In the event of the third circumstance in
the preceding paragraph, the trade association shall be encouraged to report to the anti-monopoly law enforcement agency in a timely manner, or instruct its members to report to the anti-monopoly law enforcement agency as soon as possible the relevant information on the monopoly agreement and provide important evidence, and at the same time remind its members to stop the suspected illegal acts and cooperate with the investigation. The anti-monopoly law enforcement agency may mitigate or exempt from punishment according to law for operators who meet the conditions for leniency. Article
21 If a trade association cooperating with the investigation
finds that its own actions are suspected of violating the provisions of the Anti-monopoly Law, or has been filed by the anti-monopoly law enforcement agency according to law or initiated the investigation procedure, it shall immediately stop the relevant actions, report the relevant information to the anti-monopoly law enforcement agency on its own initiative, and report to the anti-monopoly law enforcement agency on its own initiative. And cooperate with the follow-up investigation of the anti-monopoly law enforcement agencies, and shall not refuse or obstruct the investigation of the anti-monopoly law enforcement agencies.Article
22 Where a
trade association and its members are suspected of violating the provisions of the Anti-monopoly Law, the anti-monopoly law enforcement agency may interview its legal representative or person in charge. The trade association and its members shall make rectification in accordance with the requirements of the anti-monopoly law enforcement agency, put forward specific measures to eliminate the consequences of the act and the time limit for performance, and submit a written report.
The anti-monopoly law enforcement agency may inform the industry management department and the social organization registration administration organ of the interview, or invite the above-mentioned departments to jointly conduct the interview as required. Article
23 Legal Liability
If a trade association engages in or organizes the operators of the trade to engage in monopolistic acts, the trade association and the operators shall bear corresponding legal liabilities in accordance with the provisions of the Anti-monopoly Law. When determining the legal liabilities of trade associations and operators,
the anti-monopoly law enforcement agencies shall consider such factors as the nature, degree and duration of illegal acts, the elimination of the consequences of illegal acts, the role played by trade associations, the role played by operators, and the implementation of monopoly agreements. If a
trade association has the initiative to eliminate or mitigate the harmful consequences of illegal acts, cooperate with the anti-monopoly law enforcement agencies in investigating and dealing with monopolistic acts and perform meritorious deeds, the anti-monopoly law enforcement agencies shall give a lighter or mitigated punishment according to law. If a
trade association coerces its members to reach a monopoly agreement, prevents its members from withdrawing from the monopoly agreement, or has been subject to administrative penalties for illegal acts of the same nature within one year, the anti-monopoly law enforcement agency may impose heavier penalties according to law. Article
24
For trade associations listed in the list of abnormal activities and serious violations of law and dishonesty due to violation of the Anti-monopoly Law, the anti-monopoly law enforcement agencies may take them as key regulatory objects. Article
25 Strengthen communication and coordination between departments
and anti-monopoly law enforcement agencies, registration and management organs of social organizations and industry management departments, promote closer links between competition supervision, market access and industry supervision, shift from case docking of supervision and law enforcement to deep-level system docking, improve the efficiency of supervision and law enforcement, and strengthen supervision. Form a synergistic regulatory force. Article
26 Interpretation
of the Guidelines These Guidelines shall be interpreted by the Office of the Anti-monopoly and Anti-unfair Competition Committee of the State Council, and shall come into force as of the date of promulgation.
