Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The definition of a dominant position is given by Article 22 AML an undertaking which is capable of controlling the prices or quantities of goods or other trading conditions in the relevant market, or to hinder or affect the ability of other undertakings to enter the relevant market.
A relevant market is according to Article 15 AML “the range of products or territorial scope in which undertakings  …

Dominant position

The definition of a dominant position is given by Article 22 AML an undertaking which is capable of controlling the prices or quantities of goods or other trading conditions in the relevant market, or to hinder or affect the ability of other undertakings to enter the relevant market.

A relevant market is according to Article 15 AML “the range of products or territorial scope in which undertakings compete in respect of specific goods and services (collectively referred to as goods) during a given time period" The geographical market is not limited to PRC but may be more global: thus for a specific commodity market, small transactions might fall within the scope of the provision despite the fact that they do not affect the Chinese market.

Article 23 lists the factors used to determine whether the undertaking is in a dominant position: (I) the undertaking's market share in the relevant market and the competition situation of the relevant market; (II) the ability of the undertaking to control the sales market or the raw material procurement market; (III) the financial and technical conditions of the undertaking; (IV) the degree of dependence of other undertakings on the undertaking in their trading; (V) the degree of difficulty for other undertakings to enter the relevant market; and (VI) other factors relevant to the determination of the dominant market position of the undertaking.

Article 24 provides for a list of three presumptions of existence of market dominance:

(1) a business operator holding a market share of 50% or above;

(2) two business operators jointly holding a market share of 2/3 or above;

(3) three business operators jointly holding a market share of 3/4 or above.

An undertaking holding less than 10% of the market in situation 2 or 3 is not presumed to have a dominant position on the market. Conversely, an undertaking falling under the scope of situations 1 to 3 may bring evidence to the contrary.

The SAMR Rules on Abuse of Dominance published in June 2019 provide further details on the assessment of dominance. Factors to be taken into account include market share and the competitiveness of the market, possibility of access to distribution or raw materials, financial strength and technical conditions, dependence of other operators and barriers to entry. The rules specify that the calculation of market shares may be based on factors other than the undertaking's value or volume of sales. The rules also contain specific provisions relating to the assessment of dominance as regards the internet and IP rights and address the issue of collective dominance. 

Article 40 adds explicitly the prohibition for administrative bodies from hindering undertakings from entering a market or imposing discriminatory treatment, or otherwise limiting competition. 

Moreover, Article 55 enables the SAMA to investigate suspected administrative abuse committed by those bodies.

An undertaking having a dominant position is precluded from abusing it by engaging in any of the conducts prohibited by the AML listed in Article 22, such as “(I) selling goods at an unfairly high price or buying  goods at an unfairly low price; (II) selling goods at a price lower than cost without justifiable reasons; (III) refusing to trade with its trading partners without justifiable reasons; (IV) restricting its trading partners to trade exclusively with the said undertaking or trade exclusively with the designated undertakings without justifiable reasons; (V) conducting tied sales or adding other unreasonable trading conditions without justifiable reasons; (VI) discriminatory treatment of trading partners under the same conditions with respect to trading price and other trading conditions without justifiable reasons; and (VII) other practices considered as an abuse of dominant market position under the Anti-monopoly Law Enforcement Agency of the State Council”.

Finally, the provision states the possibility of having an abuse “determined by the Anti-Monopoly Authority under the State Council.” Important concepts such as “unfairly high prices”, “unfairly low prices” and “justifiable cause” are not defined in the text.

The SAMR Rules on Abuse of Dominance published in June 2019 constitute an effort to bring some clarity to those concepts. 

Following the amendment of the Anti-Monopoly Law (AML) in 2022, the State Administration for Market Regulation (SAMR) unveiled provisions in March 2023, including guidance on the factors to consider for finding dominance of digital platforms, such as: the characteristics of competition in the industry; the business models; the size and volume of transactions; user numbers; network effects; foreclosure effects; technical features; market innovation; ability to control traffic; and the holding and handling of data. 

In particular, China has strengthened its regulatory framework in this area by issuing new antitrust guidelines to regulate trade associations, clearly defining offenses such as cartels and abuses of dominant market positions.

Global Competition Law

916. Dominant position

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

916. Dominant position

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise