原标题：反垄断再次敲响警钟：对于阿里，腾讯，字节和美团等巨头，最高罚款50万有效吗？
概括
[Anti-monopolyalarmbellagain:Isafineof500000yuaneffectiveforgiantssuchasAliTencentByteandMeituan?】AssoonastheNationalTwoSessionsclosedtheStateAdministrationofMarketSupervisionmadeadministrativepunishmentdecisionson10casesofillegalimplementationofoperatorconcentrationintheInternetfieldinvolvingmanyleadingcompaniessuchasAliTencentJDcomBytedanceandMeituan(21stCenturyBusinessHerald)
the InternetAntitrustThe pace of supervision has accelerated.
China’s Internet IndustrymonopolyStrong supervision is the general trend.
The National Two Sessions just concluded,marketThe General Administration of Supervision has made administrative punishment decisions on 10 illegal implementation of operator concentration cases in the Internet field, involving Alibaba, Tencent,Jingdong, Bytedance, Meituan and many other headsenterprise。
Although 12 companies were fined 500,000 yuan, compared with illegalbusinessThe gains are obviously insignificant, and the absence of relevant penalties in the past years has also given the company a fluke.
However, after the first Internet antitrust ticket was issued in December last year, the financingM&AThe monopoly nature of itself is valued, and the risk of not reporting the concentration of operators in accordance with the law has increased significantly. Anti-monopoly declaration has become a legal obligation that cannot be ignored in mergers and acquisitions involving VIE structures.
The penalties mentioned this time that none of the 10 concentration of undertakings had the effect of eliminating or restricting competition, and no separation was required, but no specific evaluation details were disclosed. The increase in the transparency of anti-monopoly law enforcement has become the expectation of the outside world.
In December last year, the Anti-Monopoly Bureau revealed that it receivedInternet companiesThe report on the suspected failure to declare the concentration of undertakings in accordance with the law involves many enterprises, a relatively wide range of industries, and a long time span. The investigation is under way.
After the regulation has opened a new page, I wonder where the Internet anti-monopoly hammer will fall next time?
Top 12 companies are punished
A reporter from the 21st Century Business Herald found that these 10 cases of illegal implementation of operator concentration all involved giants, including Ali, Tencent,Jingdong、Baidu, Bytedance, Meituan, Didi, Suning,Good future, Niu Kafu and so on.
Like Intime Commercial’s acquisition of Kaiyuan Commercial, Intime’s ultimate controller isAlibaba; Shanghai Oriental Press Co., Ltd.the companyIn the case of establishing a joint venture with Quantum Jump, Quantum Jump controlled artificial byte beating; in Chengdu Meigenmei’s acquisition of Wangjiahuan’s equity, Meigenmei was behind Meituan; and in Suqian Hanbang’s acquisition of Wuxing Electrical Appliances case, Suqian The ultimate controller of Hanbang isJingdonggroup.
The 10 cases punished this time violated Article 21 of the Anti-Monopoly Law and constituted illegal implementation of the concentration of undertakings.
What is “concentration of operators”?According to Article 20 of the Anti-Monopoly Law, “Concentration of undertakings refers to the following situations: (1) Merger of undertakings; (2) Undertakings obtain control of other undertakings by acquiring equity or assets; (3) Operator passedcontractObtaining control over other operators or being able to exert decisive influence on other operators”.
In the 10 cases, most of the transactions were equity acquisitions. For example, Suqian Hanbang acquired 100% equity of Five Star Electric through multi-step transactions; Yintai Commercial acquired its shares for 3.36 billion yuan.Wholly-owned subsidiaryKaiyuan Commercial has 100% equity; Tencent has signed a Series F equity subscription agreement with Yuandaodao to subscribe for 83.33% of the shares issued in this round of financing and obtain control of Yuandaodao. Only Oriental Press and Quantum Jump, and Didi Mobile and SoftBank have established joint ventures.
If the concentration of undertakings meets the reporting standards set by the State Council, the undertakings shall report to the State Council in advance.Antitrust Enforcement Agencydeclare. However, none of the 10 cases mentioned above have been reported to the Anti-monopoly Law Enforcement Agency of the State Council in advance.
However, although it constitutes an illegal implementation of the concentration of undertakings, the report states that the assessment does not have the effect of eliminating or restricting competition.
“This shows that they violated the procedural provisions of the Anti-Monopoly LawSubstantive examination, Has no effect on transaction competition, if the declaration is still approved. “Anjie Law FirmpartnershipGu Zhengping told reporters of 21st Century Economic News.
Market SupervisionThe General Administration fined 12 companies including Yintai Commercial (Group) Co., Ltd. 500,000 yuan. According to the existing law, this is the top penalty for illegal undertakings concentration.
According to Article 48 of the Anti-Monopoly Law, if a business operator violates the provisions of this law to implement concentration, the Anti-Monopoly Law Enforcement Agency of the State Council shall order it to stop the implementation of the concentration, dispose of shares or assets within a time limit, transfer business within a time limit, and take other necessary measures to restore the concentration before the concentration. The state can be fined less than 500,000 yuan.
Insufficient deterrence with a fine of 500,000
Regarding the penalty for failing to declare the concentration of business operators in accordance with the law,BaiduSubmitted in Hong Kong on March 9Secondary listingIt has been mentioned in the prospectus (data set after the hearing).
BaiduIt was disclosed that in January this year, it received a notice of filing a case, requesting to provide materials on whether the undeclared transaction constitutes a concentration of undeclared undertakings. After receiving the notice of the proposed fine of 500,000 in the case recently, Baidu did not oppose the proposed penalty.
Taking a fluke is one of the reasons why companies fail to declare according to law.
For non-pre-declaration, Baidu gave the reason that, considering the regulatory history of the Internet industry and past industry practices-until recently, only a few Internet companies with a VIE structure have been investigated for suspected operator concentration, and several Internet companies have conducted investigations in the past. The declaration of concentration of business operators has not been accepted.
In the 12 years since the “Anti-Monopoly Law” came into effect, anti-monopoly law enforcement agencies have not investigated and dealt with cases of concentration of undertakings not declared in accordance with the law in the Internet industry until December 2020Alibaba, Tencent, Fengchao’s non-declared business concentration case involving the VIE structure.
However, the Anti-Monopoly Bureau mentioned in December last year that it is reviewing according to lawHuyaFighting fishThe merger has recently received some clues involving Internet companies suspected of failing to declare illegal implementation of operator concentration, involving many companies, a relatively wide range of industries, and a long time span. They are being verified and investigated and dealt with in accordance with the law.
The low level of punishment also makes it too easy for companies to evade legal responsibility.
Although the penalty is already 500,000, the commercial benefits brought by the concentration of operators are obviously insignificant. When answering a reporter’s question on December 14 last year, the main person in charge of the Anti-Monopoly Bureau admitted: “Compared with other jurisdictions, the amount of fines for illegal implementation of operator concentration in my country is indeed low, and deterrence is limited.”
In January 2020, the State Administration for Market Regulation announced the draft revision of the “Anti-Monopoly Law”. This is the first revision of the current “Anti-Monopoly Law” in 12 years since its implementation. It also included the new Internet business format for the first time. At the same time, the penalties for violations have been increased, and the upper limit of fines for failure to declare according to law has been increased from 500,000 yuan to 10% of the previous year’s sales.
Regarding the tens of billions of billions in sales of giants, if the plan is adopted by the final revised anti-monopoly law, the administrative penalties for a future M&A transaction due to failure to declare in accordance with the law may be in the hundreds of millions.
“The concentration of business operators that has not been declared in accordance with the law is invalid until approval. Therefore, law enforcement agencies can also investigate and deal with the horizontal or vertical competition agreements between the two parties who have implemented the concentration of business operators during the period of non-declaration.” Tsinghua UniversityNational strategyLiu Xu, a special researcher of the Academy, told the 21st Century Business Herald that if penalties are imposed on the horizontal and vertical restrictions on competition during this period, a fine of 1% to 10% of the above annual sales will be imposed and the illegal gains confiscated.
Improve law enforcement transparency
AlibabaIn the three fined cases of Tencent, Fengchao, and because they did not have the effect of eliminating or restricting competition, the penalty decision did not require the operators to return to their pre-concentration state, that is, there is no need to split.
The Anti-Monopoly Bureau mentioned at the time: “Returning to the state before the concentration isEnterprise DevelopmentFrom the perspective of my country’s illegal implementation of centralized law enforcement and the experience of law enforcement outside the territory, it is generally only applicable when the transaction has the effect of eliminating or restricting competition. “
The same was true in the 10 cases disclosed in this concentration, and the operators were not required to return to the state before the concentration.
“After paying the fines in full, we do not expect to be further punished by the State Administration of Market Supervision for this case.” Baidu disclosed in the prospectus.
Article 53 Paragraph 1 of the Anti-Monopoly Law stipulates: “If you are dissatisfied with the decision made by the anti-monopoly law enforcement agency in accordance with Article 28 and Article 29 of this law, you may first apply for administrative reconsideration in accordance with the law; if you disagree with the administrative reconsideration decision, you may Initiate administrative litigation in accordance with the law.”
Liu Xu stated that if it is deemed that the review decision of the case is disputed, other affected operators and consumers can initiate administrative reconsideration or even administrative litigation.
However, the officials did not disclose specific evaluation details for the determination that the 10 cases did not have the effect of eliminating or restricting competition.
In the three fined cases in December last year, the relevant person in charge of the Anti-Monopoly Bureau has made relevant statements on the investigation of the case, such as “a comprehensive assessment of the impact of concentration on market competition, and an examination of the competition status and the relevant market where the target company is located. The development trend also examines the business relationship between the acquirer and the target company and the possible impact of platform features.”
“The penalty decision this time shows that the transparency of the enforcement of the centralized review of business operators is low, the information disclosure of individual cases is extremely simple, the outside world cannot participate in the relevant review procedures, and there is no opportunity to directly give feedback to the anti-monopoly law enforcement agency on the case.” Liu Xu said, Little impact on market competition,market shareSimple cases with low concentration of business operators still need to declare information publicly and give feedback to the outside world within 10 natural days.
Liu Xu suggested that in cases of concentration of undertakings that have not been declared in accordance with the law, the report information, case filing information, and investigation progress should also be made public, so that outsiders can provide feedback to help law enforcement agencies overcome the weakness of information asymmetry, prevent insider trading, and protect investors Benefits and reasonable expectations.
“The monopoly nature of financing mergers and acquisitions itself is valued.” Dong Yizhi, a lawyer at Shanghai Zhengce Law Firm, said that the “Interim Regulations on the Review of Concentration of Undertakings” and “AboutPlatform economy“Guide to Anti-Monopoly in the Field”, the joint advancement at the guidance level and the practical level, the investment, financing and mergers and acquisitions that will be carried out in the future will have a large number of review links.When several heads used acquisitions and other behaviors to “merge” in order to expand their territory in the next step,GuaranteeSuch review is very necessary for the orderly development of the market.
(Source: 21st Century Business Herald)
(Editor in charge: DF358)
Solemnly declare: The purpose of this information is to spread more information, and it has nothing to do with this stand.