《反垄断法》实施与企业应对：以经销协议为例
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《反垄断法》实施与企业应对：以经销协议为例
时间：2009-9-21 16:08:25 来源：戴健民律师 点击：610
2008年8月1日生效实施的《中华人民共和国反垄断法》(“《反垄断法》”)在立法进程上无疑是具有里程碑意义的。尽管《反垄断法》的有关配套法规尚未出台, 但该法的生效必然对企业在业务经营方面产生相当大的影响。本文拟以经销协议为例探讨企业在《反垄断法》正式实施后所需要关注的法律风险。
(一)《反垄断法》对经销协议的规制
1. 经销协议的定义
一般而言, 经销协议是指企业作为生产商或者供应商与经销商签订协议, 由经销商以自己的名义向消费者销售由生产商或者供应商提供的商品。此种协议属于《反垄断法》第十四条所规定的经营者与交易相对人 达成的协议(即纵向协议)。
2. 纵向协议的规制
根据其他国家的反垄断法或竞争法的实践和经验, 按照是否涉及价格的标准, 反垄断法层面对经销协议的规制一般分为对纵向价格的限制和对纵向非价格的限制。
(a) 纵向价格规制
就第一种类型的纵向价格规制,《反垄断法》做出了如下明确规定：如经营者与交易相对人达成下列垄断协议的：(a) 固定向第三人转售商品的价格; 或 (b) 限定向第三人转售商品的最低价格 , 该垄断协议将构成对《反垄断法》的违反。尽管《反垄断法》并未明确, 具备该条款的经销协议将被适用
“本身违法原则 ”还是合理原则 , 但是, 根据国外的反垄断实践经验, 该等经销协议一般适用本身违法原则 。由此可见, 我国反垄断执法机构对具备该条款的经销协议将很可能采取本身违法原则。
但是, 如果该经销协议本质是代理销售协议, 则具备上述条款的经销协议将可能不受《反垄断法》的规制。一般而言, 评价一个经销协议是否是真正的代理协议, 决定性的因素是代理人在其被委托从事的经济活动中，是否自己承担资金方面和商业方面的风险。换言之, 如果代理人自己不承担委托活动的商业风险, 则该代理协议则是真正的代理协议, 其将不属于《反垄断法》的规制对象。再者, 如果经销协议是由母公司与其关联公司签署的, 则该经销协议也将可能不受《反垄断法》的规制。
(b) 纵向非价格规制
就第二种类型的纵向非价格规制, 尽管《反垄断法》并未明确做出规定, 但是, 《反垄断法》第十四条却保留了立法空间, 即“国务院反垄断执法机构认定的其他垄断协议”。因此, 企业应密切关注相关反垄断执法机构颁布的指引或做出的具体判例。根据其他国家的反垄断立法和实践, 纵向非价格规制主要针对以下行为：搭售、独家销售、独家购买、特许销售、选择性销售和特许经营等行为。而且, 需要特别注意的是, 其他国家对此类经销协议的规制普遍适用合理原则, 即该类型经销协议并不必然触犯反垄断法, 而需要对该类经销协议的促进竞争和限制竞争方面进行衡量, 从而得出该经销协议是否构成对反垄断法的违反。再者, 如果一家企业在某一市场享有较大的市场份额(如超过30％), 则其签署的该类经销协议将很可能受到反垄断执法机构的调查。
3. 经销协议的豁免
《反垄断法》并非对所有的垄断协议都予以禁止, 该法第15条规定：在满足下列条件时, 不适用上述14条的规定。换言之, 违反了《反垄断法》的经销协议具有下列任一情形的, 可以获得豁免：
(a) 为改进技术、研究开发新产品的;
(b) 为提高产品质量、降低成本、增进效率, 统一产品规格、标准或者实行专业化分工的;
(c) 提高中小经营者经营效率, 增强中小经营者竞争力的;
(d) 为实现节约能源、保护环境、救灾救助等社会公共利益的;
(e) 因经济不景气, 为缓解销售量严重下降或者生产明显过剩的;
(f) 为保障对外贸易和对外经济合作中的正当利益的;
(g) 法律和国务院规定的其他情形。
但是, 根据《反垄断法》的规定, 证明经销协议属于上述情形之一的举证责任归属于企业; 而且企业还需证明该经销协议不会严重限制相关市场的竞争且能够使消费者分享由此产生的利益。
4. 经销协议违反《反垄断法》的法律后果
(a) 民事责任
《反垄断法》本身并未规定经销协议违反该法后会产生什么样的民事法律后果。《中华人民共和国反垄断法草案》第十一条规定：本章禁止的垄断协议自始无效, 但最终通过的《反垄断法》删除了该条款。因此, 被认定为《反垄断法》项下的垄断协议的经销协议是否无效目前并无明确的定论, 该方面将由反垄断执法机构或最高人民法院作出进一步的解释。
(b) 行政责任
根据《反垄断法》第46条规定, 如企业实施的经销协议违反《反垄断法》, 企业将承担如下行政责任：(i) 被反垄断执法机构责令停止违法行为; (ii) 没收违法所得, 及 (iii)处上一年度销售额百分之一以上百分之十以下的罚款; 或尚未实施所达成的经销协议的, 可处以五十万元以下的罚款。
需要注意的是, 如企业主动向反垄断执法机构报告达成垄断经销协议的有关情况并提供重要证据的，反垄断执法机构可以酌情减轻或者免除对该企业的处罚。
(c) 刑事责任
根据《反垄断法》, 企业实施的经销协议违反《反垄断法》的, 企业或企业的相关责任人(如董事长或其他高级管理人员)并不需要承担任何的刑事责任。
(二) 企业的应对
首先, 企业于签订经销协议之前, 应当比照《反垄断法》尽量做好自我审查。由于《反垄断法》并未对垄断经销协议的审查标准做出明确规范, 且反垄断执法机构至今未就经销协议颁布任何指引或指导意见, 这就使企业在签订经销协议时没有具体的标准可以遵循, 给企业的合规性审查带来很大的困难和不确定性, 但是企业应当尽量借鉴国外的反垄断审查经验并寻求外部法律顾问的帮助进行合规性审查。
其次, 企业应密切关注反垄断相关立法的新进展以及实践操作中的新变化。《反垄断法》虽然已经颁布实施, 但是除了《经营者集中申报标准》外, 没有其他的实施条例、实施细则或者指南出台, 使得《反垄断法》原则性太强, 缺乏实际操作性。但可以预见, 随着《反垄断法》的实施, 相应的实施细则和指南也会相继颁布。
再者, 如果企业已经实施的经销协议出现上述纵向垄断情形, 则很可能由于与《反垄断法》出现实质冲突而引起反垄断执法机构的注意或调查。企业应当立即采取措施来避免反垄断执法机构的调查, 比如在涉及到纵向价格垄断时, 将“固定零售价或者最低转售价”变更为“建议零售价或者推荐转售价”, 且该等建议或推荐最好不与拒绝交易和价格折扣联系起来。该等商业安排并不排除销售商之间的价格竞争, 因此不违反《反垄断法》的规定。
最后, 针对不同的主体, 目前企业可采取相应的具体应对策略, 详见附件。
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附件：《反垄断法》项下的经销协议应对：供应商的视角
主体
其可能采取的措施
供应商应对
已签署经销合同的交易相对方
(1) 主张整个经销协议全部无效, 从而解除其在经销协议项下的义务;
(2) 主张经销协议的个别条款(如限定转售商品最低价格)无效, 从而解除其在经销协议项下的该项义务。
向其明确目前《反垄断法》项下并未规定具备相应条款的经销协议当然无效(无论是部分无效还是全部无效), 其主张无法律依据和基础。
希望签订经销合同的第三人
主张供应商签署的经销协议无效(如独家经销协议或选择性经销协议)并要求供应商按照同等交易条件与其签订经销协议
(1) 向其明确目前《反垄断法》项下并未规定具备相应条款的经销协议当然无效, 其主张无法律依据和基础。(2) 即使经销协议被认定为无效, 供应商也无义务与其签订相关的经销协议。
反垄断执法机构
(1) 根据当事人的举报对供应商进行调查;
(2) 依法自行对供应商进行调查;
(3) 根据其所调查的结果对供应商进行行政处罚。
(1) 根据《反垄断法》对反垄断执法机构之调查的合法性进行评估(如目前省一级的工商行政管理机构无权对垄断协议进行调查和处罚); (2) 如供应商经过评估, 认为其签署的经销协议很可能违反《反垄断法》的, 可适用《反垄断法》第45条项下的承诺制度, 以中止调查程序; (3) 如供应商经过评估, 认为其签署的经销协议很可能违反《反垄断法》的, 经慎重考虑后, 可选择主动向反垄断执法机构报告并提供重要证据, 从而减轻或免除处罚。
Enforcement of the Anti-monopoly Law and Response of the Undertakings: Distribution Agreement Perspective
As effective of August 1, 2008, the Anti-monopoly Law of the People’s Republic of China (the “AML”) is undoubtedly a milestone of legislation in China. Although the relevant regulations and guidelines have not been released till now, the effectiveness of AML certainly will be considerably influential to the current business operation of the enterprises. This article intends to discuss the legal risks which need to be concerned by the enterprises upon the enforcement of the AML from the perspective of the distribution agreement.
Regulating the Distribution Agreement by the AML
1. Definition of the Distribution Agreement
Generally speaking, the distribution agreement refers to the agreementthe enterprises being manufacturers or suppliers enter into with the distributors so that the distributors, in their own name, sell the commodities provided by the manufacturers or suppliers to the consumers. Such agreements fall into the agreements, stipulated in Article 14 of the AML (the Vertical Agreements), concluded by the business operators with their counter-parties[1] .
2. Restrictions to the Vertical Agreement
Based on other countries’ practice and experience on antitrust law or competition law, restrictions by the AML to the distribution agreements generally can be divided into two categories: the vertical price restraint and the non-price vertical restraint according to the price involving or not.
(a) Restrictions to the Vertical Price
With regard to the restrictions to the vertical price, the AML expressly regulates as follows: provided that the business operators reach the below monopoly agreements with their counter-parties: (a) Fixing the price of commodities for resale to a third party; or (b) limiting the minimum resale price of commodities sold to third parties[2]; such agreements will violate the regulations of the AML. Although the AML does not clearly provide whether the distribution agreements containing the aforesaid clauses will be applicable by “Per se Illegal Rule[3]” or “Rule of Reason[4]”, such agreements will be applied to Per se Illegal Rule pursuant to the antitrust experience in other jurisdictions[5]. Therefore, it is of great possibility that the Anti-monopoly Enforcement Authority (the “AMEA”) would adopt the Per se Illegal Rule to the aforesaid distribution agreements.
However, if the distribution agreements are agency sales agreements in nature, such distribution agreements containing the aforesaid clauses will probably not be regulated by the AML. Generally speaking, when evaluating whether a distribution agreement is a true agency sales agreement or not, the decisive element is whether the agent undertakes the financial and commercial risks or not, during the economic activities which are entrusted to the agent. In other words, an agency sales agreement will fall out of the regulation under the AML provided that the agent does not undertake the commercial risks relating to the entrusted activities. Moreover, provided that the distribution agreement is entered into by and between the parent company and its affiliated company, such distribution agreement will also probably not be regulated by the AML.
(b) Non-price Vertical Restrictions
With respect to the non-price vertical restraint, the AML does not make any clear stipulations. However, the article 14 of the AML which provides “Other monopoly agreements as determined by the Anti-monopoly Enforcement Authority under the State Council” leaves room for supplemental legislation. Therefore, the enterprises shall keep close watch on the guidance enacted by the AMEA or specific decision made by it. In accordance with other countries’ legislation of antitrust law or practice, the non-price vertical restrictions are mainly dealing with the following acts: tied sales, exclusive sales, exclusive purchase, franchising trading，selective sales and franchise business etc. Meanwhile, it should bear in mind that such distribution agreements in other jurisdictions generally are applicable to “Rule of Reason”. That is, such distribution agreements will not consequentially violate the antitrust laws. The conclusion whether such distribution agreements breach the antitrust laws or not shall be based on the necessary measure of their effect upon promoting competition or restricting competition. Furthermore, provided that an undertaking has a substantial share in certain market (if over 30%), such distribution agreements concluded between the undertaking will probably be investigated by the antitrust enforcement authorities.
3. Exemptions of the Distribution Agreements
The AML does not prohibit all the monopoly agreements, the monopoly agreements may be exempted from Article 14 provided that they are satisfied with the following conditions in accordance with the Article 15. In other words, the distribution agreements satisfying with any of the following circumstances may be exempted:
(a) for the purpose of improving technologies, researching and developing new products;
(b) for the purpose of improving product quality, reducing costs, enhancing efficiency, unifying product specifications or standards of products, or implementing division of tabor based on specialization;
(c) for the purpose of enhancing operational efficiency of small and medium-sized undertaking and enhancing their competitiveness;
(d) for the purpose of achieving public interests, including, but not limited to energy saving, environmental protection and disaster relief, etc;
(e) for the purpose of alleviating the serious decrease of sales volume or obvious excessive production during economic recessions;
(f) for the purpose of safeguarding the legitimate interests in the foreign trade or foreign economic cooperation;
(g) Other circumstances as prescribed by the law or by the State Council.
However, according to the AML, the enterprises shall bear the burden to prove the distribution agreements may meet with one of the aforesaid circumstances, and shall prove that the distribution agreements would not materially restrict the competition in the relevant market and can allow the consumers to share the benefits generated therefrom.
4. Legal Consequences of Violating the AML
(a) Civil Liability
The AML itself makes no provision on the legal consequences of violating the AML by the distribution agreements. Under article 11 of the AML draft, the monopoly agreement would be automatically null. However, such provision has been deleted from the AML. Therefore, there is no clear statement concerning the nullity of the monopoly agreement under the AML. This issue would be interpreted by the AMEA or the China Supreme Court.
(b) Administrative Liability
According to the Article 46 of the AML, provided that the undertaking implement the distribution agreements that violate the AML, the undertaking shall undertake the following administrative liabilities: (i) be ordered to cease the illegal acts by the AMEA; (II) be confiscate the illegal gains; (III) be imposed a fine more than one percent (1%) but less than ten percent (10%) of the sales revenue made in the previous year, or in case that the concluded distribution agreement has not been performed, a fine of less than RMB 500,000 (equivalent to approximately USD 70,000) may be imposed.
It shall bear in mind that if the undertakings, on their initiative, report to the AMEA information concerning the conclusion of monopoly agreements and provide important evidence, the AMEA may reduce the penalty imposed or grant exemption from penalty after weighting the relevant circumstances.
(c) Criminal Liability
Under the AML, if the undertaking implements the distribution agreements that violate the AML, the undertaking and their responsible persons (such as the board chairman and other senior managers) would not subject to any criminal liability.
Response of the Undertakings
In the first place, prior to entering into any distribution agreement, the undertaking shall make self-review as soon as possible in the light of the AML. Since the AMEA did not make clear scrutiny standard to the distribution agreement or release any guideline, such situation has resulted in no detailed standard for the compliance of concluding the distribution agreement. This has also created great difficulties and uncertainties for regulatory compliance. Notwithstanding, the undertaking shall conduct compliance review by learning the experience of foreign antitrust review and seek for the assistance from the external legal counsels.
Secondly, undertaking shall keep close eyes on the new developments of relative legislation pertaining to AML and the new changes in the enforcement of the AML. Despite the promulgation of the AML, except for Regulation on Notification Threshold for Concentration of undertaking, no other implementing regulations, rules or guidelines have been issued. This makes the AML vague and lack of practices. However, it might be predicted that the corresponding implementing rules and guidelines will be enacted one after the other upon the enforcement of the AML.
Thirdly, if the implementing distribution agreements concluded by undertaking have fell into the monopoly agreement under the AML, attention or investigation of the AMEA might be triggered due to the substantial conflicts between the distribution agreements and the regulations of the AML. The undertaking shall immediately take measures to avoid the investigation of the AMEA, for example, when involving the vertical price monopoly, changing the “fixed retail price/minimal resale price” into “suggested retail price or recommended resale price“, and it had better not to connect such suggestions or recommendation with transaction refusal and price discount . Such commercial arrangements will not exclude the price competition among the distributors, therefore, they will not violate the AML.
Lastly, as for different parties, currently, undertaking may adopt relevant specific measures (see attachment A). In the meantime, considering the fact that, to great extent, the AMEA would adopt the enforcement approach or release the relevant guidelines referring to the antitrust experience of the EU and the US, I have summarized the framework of regulating the distribution agreement under the EC based on my study on the EU Competition Law in the United Kingdom. Hopefully such summary (see attachment B) is helpful for undertakings.
Disclaimer: This newsletter including the attachments is for general guidance only and is not intending to provide any legal advice in any specific case. We expressly disclaim any liability for the consequences of action or non-action based on this newsletter. All rights of this newsletter reserved.
Attachment A: Handling with Distribution Agreements under the AML: Suppliers’ Perspective
Parties Possible Actions Counter Actions by Suppliers
The counter-parties who have entered into distribution agreement with suppliers (1) Declare the distribution agreement null as a whole, thus getting rid of all its obligations under such agreement;
(2) Declare certain provisions (such as fixing of the resale minimum price) under the distribution agreement, thus getting rid of such kind of obligations under such agreement. Expressly make the statement that there are no stipulation pertaining to the automatic nullity (in part or as a whole) of the distribution agreement, hence, there is no legal ground for such declaration.
Third party who want to conclude distribution agreement with suppliers Declare the distribution agreement(such as exclusive distribution agreement or selective distribution agreement) null as a whole, and require the supplier to enter into the distribution agreement at the same commercial terms (1) Expressly make the statement that there are no stipulation pertaining to the automatic nullity (in part or as a whole) of the distribution agreement, hence, there is no legal ground for such declaration ; (2) Even if the distribution agreement was null, there were no obligations for supplier to conclude the relevant distribution agreement.
The AMEA
(1) Conduct the investigation according the report of any individual or entities;
(2) Conduct the investigation against the suppliers according to the law and regulations;
(3) Make the administrative penalties according to the investigation. (1) Based on the AML, review the legitimacy of the investigation by the AMEA (Currently, the SAIC at the provincial level may not conduct investigation and make administrative penalties against the monopoly agreement); (2) By self-appraisal, if the supplier considers the concluded distribution agreement has possibly violates the AML, it may apply the settlement of investigation under article 45 of the AML, thus suspending such investigation; (3) By self-appraisal, if the supplier considers the concluded distribution agreement has possibly violates the AML, it may choose to report to AMEA and provide relevant evidence for the alleviation or exemption of administrative penalties.
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[1] Generally speaking, the counter-party of a manufacturer is the distributor whereas the counter-party of a distributor is a retailer.
[2] Based on the antitrust practice experience in other jurisdictions, the following circumstances will be regarded as the limitation of the resale minimum price: fixing the profits margin of the counter-parties, fixing the range of the discount, prohibiting the counter-parties from making discounts to the commodities.
[3] “Per se Illegal Rule” refers to the rule evolving in the course of enforcing the antitrust law, meaning that where the existence of the agreement, resolution or concerted practice concluded between the business operators has been established, such behaviours would amount to monopoly agreement without further analyses. From the experience of the EU and United States, Per se Illegal Rule is generally applicable to the horizontal agreement, particular the core cartel, such as the price-fixing, production limitation or market allocation.
[4] Under “Rule of Reason” , the agreement, resolution or concerted practice concluded between the business operators will be analysed whether such behaviours exclude or restrict competition, considering the involving market status and the market change, and the nature and consequence of such behaviours. Should such behaviours amount to monopoly agreement only provided that they have been analysed actually excluding or restricting the market competition.
[5] On June 28, 2007, in Leegin Creative Products, Inc. v PSKS Inc., the US Supreme Court overturned its nearly 100 year old ruling, which made the resale price maintenance agreement per se illegal. The ruling is 5 to 4. This case represents the latest development of the restriction to the vertical agreement by the US Supreme Court. This case would have great impact on the US antitrust law, even on other jurisdictions’ competition law legislations.
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