文章出处:BOBapp 人气:发表时间:2023-11-13 19:33
本文摘要:In the annals of anti-monopoly case law, Chinese rice noodle and tableware cartels do not rank up there with the Standard Oil trust, the petroleum cartel that was famously prosecuted in 1911 under the US Sherman Antitrust Act.在反垄断判例法记录中,中国


In the annals of anti-monopoly case law, Chinese rice noodle and tableware cartels do not rank up there with the Standard Oil trust, the petroleum cartel that was famously prosecuted in 1911 under the US Sherman Antitrust Act.在反垄断判例法记录中,中国的米粉和餐具消毒卡特尔不能与标准石油(Standard Oil)托拉斯同日而语。1911年,美国法院根据《谢尔曼反托拉斯法》(Sherman Antitrust Act)裁决标准石油托拉斯为非法石油垄断组织,这是一个知名的判例。But in time these two much lesser known cartels, targeted by Beijing regulators shortly after the implementation of China’s 2010 Anti-Monopoly Law, may become famous in their own right. They were among the first cases in an enforcement campaign that has since ensnared the likes of Mercedes-Benz and Qualcomm. It could also soon have implications for multinationals’ ability to safeguard intellectual property in the world’s most coveted market.然而,中国这两个鲜为人知的卡特尔也许也不会因为其自身的原因扬名世界——2010年,在中国《反垄断法》(Anti-Monopoly Law)实行一年多后,它们之后被北京方面的监管部门识破了。


In both instances, the National Development and Reform Commission imposed small penalties for price collusion on more than a dozen rice noodle makers and service providers that wash, sterilise and wrap tableware in plastic for restaurants. Stephen Harris, a competition attorney with Winston Strawn in Washington DC, says both cases were a signal to Chinese companies by NDRC that “new laws exist and there’s a cop on the beat”.在两个案例中,中国的国家发改委(National Development and Reform Commission)对十多家米粉制造商以及7家为餐馆获取套装消毒餐具的餐具消毒企业判处小额罚款,原因是这些企业串通涨价。华盛顿特区温斯顿-斯特朗律师事务所(Winston Strawn)的反垄断律师斯蒂芬哈里斯(Stephen Harris)称之为,两起案件都是发改委向中国企业收到的警告——“新的法律早已实行,警员在盯着呢”。

The NDRC’s investigations into allegedly anti-competitive behaviour by domestic firms culminated with an Rmb200m ($32.2m) fine for China’s largest liquor maker, Wuliangye, two years ago. But it takes rather more money to get the attention of multinationals, and the NDRC achieved just that in 2013 with the first in a series of investigations against foreign manufacturers of milk powder, auto parts, premium cars and semiconductors.发改委对中国本土企业所谓反竞争不道德的调查,以两年前中国仅次于白酒制造商五粮液(Wuliangye)被判处2亿元人民币(合3220万美元)罚款超过巅峰。但是,要引发跨国企业的留意,还得班车更大的罚单。2013年,这个目的超过了——发改委打开了针对外国制造商的第一起调查,随后的一系列反垄断调查席卷了奶粉、汽车零部件、豪华车以及半导体领域的外国制造商。

Foreign firms accused of anti-competitive behaviour by the NDRC have generally been hit with much higher fines than their domestic counterparts. Qualcomm agreed to pay a Rmb6.1bn penalty in February, while Mercedes and Audi were fined Rmb350m and Rmb250m respectively.被发改委指控不存在反竞争不道德的那些外国公司最后接到的罚单金额,一般比被罚的国内企业低得多。今年2月,高通表示同意缴纳61亿元人民币的罚款,而飞驰和奥迪(Audi)则被分别判处3.5亿和2.5亿元人民币的罚款。


In all three instances, the fact the penalties could have been much worse has blunted some of the criticism that the NDRC has been deliberately targeting foreign companies — a charge the regulator has consistently denied.有人抨击发改委在蓄意拿外国企业动手术,而在以上3个案例中,罚款金额原本都有可能更高,这一事实恶化了部分这样的抨击。发改委对这一抨击一直不予坚称。Qualcomm’s penalty could have required much more costly changes to its business model. The San Diego company’s shares actually rose on the news. Mercedes and Audi, meanwhile, were penalised for infractions in just one province each. In theory, they could have had to pay much more had NDRC’s investigators ferreted out wrongdoing in all of China’s 32 provinces, autonomous regions and directly administered municipalities.对高通的惩处原本有可能还包括拒绝其转变商业模式,那样的话代价要高昂得多。


That suggests the NDRC’s investigations of multinationals, like the ones into domestic firms before them, were to a large degree motivated by the desire to send a wake-up call to the foreign investment community rather than secure maximum fines.这意味著,发改委对跨国企业的调查,相当大程度上是出于想敲击一下外企,而非想取得尽量低的罚金,正如发改委之前对国内企业的调查一样。So what next now that the NDRC has so effectively got its intended message across? Only one previously disclosed investigation has yet to be resolved — that involving Microsoft and the State Administration of Industry and Commerce, which also polices aspects of the 2010 AntiMonopoly Law.既然发改委早已甚有效益地表达了其意图,那么接下来不会再次发生什么?目前只有一个之前透露过的调查仍未有结果——该调查牵涉到微软公司(Microsoft)和中国国家工商行政管理总局(State Administration of Industry and Commerce,全称工商总局),后者也是反垄断执法人员机构。

Mr Harris and his colleagues at Winston Strawn — who represent both Qualcomm and Microsoft but said they could not comment on either case — are warning multinationals about a new set of SAIC guidelines that could force them to share intellectual property with their Chinese competitors. The rules, designed to “prohibit abuse of intellectual property rights to eliminate or restrict competition”, were promulgated early last month and take effect on August 1. Just as western regulators have occasionally forced operators of telecoms networks and electricity grids to share their “essential facilities” with competitors, the SAIC could compel “dominant” companies to share intellectual property when it constitutes “an essential facility of manufacturing and business operations”.温斯顿-斯特朗律师事务所的哈里斯及其同事们同时代理高通和微软公司,但是他们回应两起案件皆无法置评。他们警告跨国企业称之为,中国工商总局的新一套指导方针可能会强制它们将知识产权分享给中国竞争对手。《关于禁令欺诈知识产权回避、容许竞争不道德的规定》于上个月发布,将于8月1日生效。

就像西方监管部门有时候被迫电信网络和电力网络运营商与竞争者分享其“关键设施”一样,当这些知识产权包含“生产和商业运营的关键设施”时,中国工商总局可能会被迫“占到主导地位的”企业把知识产权共享出来。If it were to do so, the SAIC would be following the EU in applying the essential facilities doctrine to intellectual property. But the EU has only forced companies to share intellectual property in a very small number of exceptional circumstances, while the US has refused to do so.若果真如此,中国工商总局将步欧盟(EU)后尘,将关键设施理论应用于到知识产权上。但是,欧盟只是在极少数类似情况下强制企业分享知识产权,而美国则拒绝接受这么做到。

In a rare public comment on the new rules, one SAIC official has said the regulator will be “cautious” in applying them. For multinationals wary of being forced to transfer technology in China, the uncertainty is a worrying but useful reminder that the country’s anti-monopoly law is very much a work in progress. Very few if any of them took note of the implications for their own industries of the NDRC’s prosecutions of the domestic rice noodle and tableware cartels. It is a mistake that they should not make twice.在就新规公开发表的一次少见公开发表评论中,中国工商总局一名官员称该部门将“慎重”应用于新规。对于担忧在中国被强制转让技术的跨国企业而言,这种不确定性是个令人担忧、也很简单的警告,即中国的反垄断法相当大程度上还是半成品。发改委控告国内米粉和餐具消毒卡特尔的时候,跨国企业中很少(如果有的话)有哪家注意到了此事对它们自己所在行业的影响。






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