竞争法（双语）课程03antimonopolylaw2垄断协议课件

JUFE

Yu

Ling1Part

2Antimonopoly

Law:Chinese

PerspectiveLecture

ProceduresJUFE

Yu

LingLeading:

writing

practicesClassPresentationSummaryQuestions

&Assignment(10mins)(25mins)(5mins)(5mins)Activity: writing

practicesJUFE

Yu

LingCasesJUFE

Yu

Ling4(1)ReportChristmas

tree

price

fixing

scandal

in

Denmark

(2007

)(2)

Brief

to

caseContinental

TV

Inc.

v.

GTE

Sylvania,

Inc.(1977).Leegin

Creative

Leather

Products,

Inc.

v.

PSKS,

Inc.,551

U.S.

877

(2007).You

will

be

divided

into

2groups.One

group

is

required

to

write

a

report

about

Christmas

treeprice

fixing

scandal

in

Denmark

(2007

)

.The

other

group

is

required

to

write

a

brief

to

caseaboutContinental

case

and

Leegin

case.Everyone

should

turn

on

a

writing

paper

before

nextclass.Your

content

must

focus

onIssues

of

this

caseWhich

judicial

doctrine

should

be

applied?How

to

prove

monopoly

conducts?JUFE

Yu

LingExpected

OutcomeClass

PresentationJUFE

Yu

LingJUFE

Yu

Ling7Christmas

tree

price

fixingscandal

in

Denmark

(2007

)ReportFactJUFE

Yu

Ling8In

2007

there

was

a

sharp

decline

in

Danish

treeproduction.

Production

fell

from

12

million

to

8million,reducing

export

numbersdrastically.The

United

Kingdom,

a

nation

which

normallyimportedabout

1.5

million

Christmas

trees

from

Denmark,imported

500,000

trees

from

Denmark.

Initially,

theshortfall

and

the

resulting

price

increase.During

that

time

growers

planted

far

fewer

trees

afteroverproduction

had

driven

many

Christmas

tree

farmersout

ofbusiness.IssuesJUFE

Yu

Ling9On

December

17,

2007

the

Danish

Christmas

TreeGrowers

Association

(DCTGA)

was

charged

with

pricefixing

by

the

state

prosecutor

for

serious

economiccrimes.DCTGA

:

was

accused

of

sending

price

guidelines

to

itsmembers

suggesting

a

price

increase

of

10

to

25percent.In

2007,

prices

eventually

rose

25

percent.

Charges

were

handed

down

after

the

Danish

CompetitionAuthority

warned

the

DCTGA

in

2001

and

2005

about

thesame

practices.Both

the

association

itself

and

the

association's

directorat

the

time

Kaj

Østergaard

were

charged

in

the

case.Judgment

of First

InstanceJUFE

Yu

Ling10the

Eastern

HighCourt.The

court

ruled

that

the

DCGTA

had

published

price

statistics

anda

price

calculation

model,

as

well

as

other

tools

which

were

usedto

guide

member

pricing,

including

minimum

prices.The

DCTGA

was

seriously

violate

of

the

Danish

CompetitionAct

due

to

pricefixing.the

DCTGA

500,000

kroner,

andthe

members

of

the

executive

committee

were

fined15,000kroner.Judgment

of

Second

InstanceJUFE

Yu

Ling11The

Danish

Supreme

Court

reviewed

the

case.The

Supreme

Court

finedthe

DCTGA

500,000

kroner,

andthe

members

of

the

executive

committee

25,000kroner.Both

the

association

and

its

"manager"

were

convicted

inthe

case.QuestionsJUFE

Yu

Ling12

1.

What

is

price

fixing?

What

is

horizontalagreements?

What

is

monopoly

agreements?

2.

Why

should

we

fight

against

price

fixing?

3.

How

should

the

state

regulate

price

fixing?

4.

How

should

the

company

prevent

price

fixingin

order

to

minimize

its

legal

risks?JUFE

Yu

LingLearning

Objectives(1)

Define

Price

Fixing,

Horizontal

Agreements

andMonopoly

Agreements;(2)

Explain

the

Hazardness

ofCartels;(3)

Expound

the

Rationale

of

RegulatingCartels.JUFE

Yu

Ling14Chapter

4Horizontal

Monopoly

Agreements1.

Price

fixing,

Horizontal

agreements

andMonopolyAgreementsJUFE

Yu

Ling

Read

Art.

13

(1)

The

Definition

of

MAsMonopoly

Agreements

in

AML

refers

toagreements,

decisions

or

otherconcertedbehaviors

that

eliminate

or

restrict

competition.(2)

The

Forms

of

MAs

Questions:

If

there

is

no

contract

(agreement),can

there

be

a

MA

betweencompetitors?MAsAgreementsbetweencompetitorsDecisionsByTradeAsso.otherconcertedbehaviorsbetweencompetitorsJUFE

Yu

Ling(3)

CategoryJUFE

Yu

Ling

Horizontal

agreements:AmongcompetitorsIn

the

same

levels

of

the

production

or

distributionchain.

Vertical

agreements:Among

business

operators

up

or

down

thesupply

chain

from

one

another.At

different

levels

of

the

production

or

distributionchain.Horizontal

agreements(Hard-core

Cartels)

Horizontal

agreements

are

agreements

amongSellers

(or

Buyers)

that

restrain

competitionbetween

competitors

in

the

same

market

.SellerBuyerSellerSellerBuyerBuyerJUFE

Yu

LingMAHorizontalagreementsamongcompetitorsVerticalagreementsupstream&downstreamcompaniesJUFE

Yu

Ling(4) Price

FixingJUFE

Yu

Ling20

An

agreement

between

competing

firms

in

themarket

to

set

an

established

price

for

thegoods

or

services

they

offer.What

is

the

main

purpose

of

Danish

treegrowersand

DCTGA

to

conduct

price

fixing?To

push

the

price

as

high

as

possible,

orTo

increase

the

profits

of

allsellers.(5) Other

Kinds

of

HAsJUFE

Yu

Ling211.

Fixing

or

changing

the

price

of

commodities;2.

Restricting

the

production

quantity;3.

Dividing

themarket;4.

Restricting

the

purchase

of

new

technology

or

new;5.

Jointly

boycotting

transactions;

or6.

Other

monopoly

agreements

as

determined

by

theAnti-monopoly

Law

Enforcement

Agency

under

theState

Council.JUFE

Yu

Ling22Cartels

are

cancers

on

the

openmarketeconomy.

By

destroying

competition

they

causeserious

harm

to

our

economies

andconsumers.——OECD2.

The

Hazardness

of

HAsJUFE

Yu

Ling23

Combine

Christmas

tree

case,

please

list

thehazardness

of

price

fixing.What

is

the

hazardness

to

market

economy？What

is

the

hazardness

to

theconsumers?What

is

the

hazardness

to

other

business

operators?theft

cf.

pricefixing2.

The

Hazardness

of

HAsJUFE

Yu

Ling24

1)

Injury

the

interests

of

other

business

operators.

2)

Injury

the

interests

of

consumers.(prevents

resellers

from

competing

too

fiercely

onprice,

especially

with

regard

to

fungible

goods)

3)

Destroy

the

competition

mechanism.Theft

cf. price

fixing

TheftProperty

crime.No

Social

welfare

net

losses.ApursesB(thieves)JUFE

Yu

Ling25Theft

cf. price

fixing

Price

fixingProperty

crime.There

always

are

lot

of Social

welfarenetlosses.well-dressed

thievesAprice

fixingB(thieves);

TheoperatingcostofcartelsJUFE

Yu

Ling26JUFE

Yu

Ling27Competition

authorities

have

different

waysandmeans

to

collect

the

necessaryevidence.There

is

often

need

for

competition

authorities

indifferent

parts

of

the

world

toco-operate

inthesematters.3.

The

Rationale

of

Regulating

CartelsJUFE

Yu

Ling28

(1)

The

Judicial

doctrine

of

cartel

casesRead

Art.

13

(2)

What

is

burden

of

proof

to

Ps

and

Dsinantimonopoly

cases?Judicial

doctrineJUFE

Yu

Ling29

per

se

violationBut

as

to

trade

associations

and

joint

ventures,

the

Ruleof

reason

is

applied

to

determine

if

a

violation

of

the

Acthasoccurred.A

JV

is

an

undertaking

by

two

or

more

individuals

orfirms

for

a

specific

purpose.burden

ofproof(per

seviolation)JUFE

Yu

Ling30burden

ofproofTo

prove

there

is

anagreements

(decisionsorother

concerted

behaviors)between

competitorsTo

prove

it

mayeliminate

orrestrictcompetitionTo

prove

it

maybeImmunitedPs√××Ds×

(if

can't

deny…)√√(3)

How

to

penalize?JUFE

Yu

Ling31How

did

the

court

penalized

the

DCTGA

and

themembersof

the

executive

committee

in

Christmas

tree

case?In

2013,

Samsung,

LG

and

four

Taiwanese

firms

havebeen

fined

heavilyfor

price-fixingof

liquidcrystaldisplay

(LCD)

panels

on

the

Chinese

mainland.to

pay

144

million

yuan

in

fines

andto

return

172

million

yuan

of

extra

payment

to

Chinesemainlandbuyers.SummaryJUFE

Yu

Ling32

Market

economy

and

free

trade

foster

growth

andprosperity.

The

question

of

“why”Harmful

cartels

between

companies

do

exist

in

allparts

of

the

world

and

must

becounteracted.

The

question

of

“how”SummaryJUFE

Yu

Ling33

The

question

of

“how”Serious

anti-competitive

practices

are,

almost

bydefinition,

kept

behind

lockeddoors.Identifying,

detecting

and

proving

cartels

is

a

difficulttask

that

requires

a

combination

of

law

andeconomiccompetencies.No

doubt,

cartel

activities

do

not

stop

at

nationalborders.Activity

1:Building

Compliance

CultureJUFE

Yu

LingYou

are

required

to

write

you

legal

memo

about

how

to

preventits

legal

risks,

as

you

are

an

in-house

legal

Counsel

of

aspecificcompany.

You

should

pay

attention

tohow

to

share

information

withcompetitors?how

to

contact

withcompetitors?how

to

attend

trade

association

conferences?how

to

make

industry

standards

withcompetitors?JUFE

Yu

LingExpected

OutcomeThis

assignment is

a

part

of

your

final

assessment

of

thiscourse,

which

is

“Antimonopoly

Compliance

Program

of

XXCompany”.It

will

be

evaluated

on

effort

(including

the

depth

ofinformation

and

personal

insight)

and

competency

in

legalwriting.Your

scores

on

this

assignment

will

be

recorded

on

yourregular

grade,

and

finally

on

your

Total

Mark

of

thissubject.JUFE

Yu

LingAssessmentActivity

2: case

studyJUFE

Yu

LingJUFE

Yu

Ling38IntroductionOn

22

Feb,

2013,

NDRC released

the

decision

to

imposepenalties