Development and Reform Commission： The car guidance price is implemented by most dealers or will be recognized as a monopoly.
BEIJING, March 23 (Xinhua) According to the official website news of the National Development and Reform Commission, the National Development and Reform Commission and relevant departments have studied and drafted the Anti-monopoly Guide on the Automobile Industry (draft for comments), which is now open to the public for comments.
The Opinions define the concepts of automobiles and automobile manufacturers, distribution markets and after-sales markets, and clarify the prohibition and exemption of monopoly agreements.
According to the Opinions, the suggested price, guided price or maximum price set by automobile suppliers for reselling automobiles and automobile after-sales accessories and supplies to dealers and repairers, and the suggested price, guided price or maximum price set for after-sales service working hours to dealers and repairers usually have efficiency effects. If, due to the pressure or encouragement of one party to the agreement, the suggested price, the guided price or the highest price are executed by most or all dealers, and the substantial effect is equivalent to the fixed resale price or the minimum resale price, these behaviors may be identified as fixed resale price or the minimum resale price according to the specific circumstances of each case.
The National Development and Reform Commission said that the time for public consultation was from March 23, 2016 to April 12, 2016. Relevant units and people from all walks of life can log on to the "Anti-monopoly" column of the website of the National Development and Reform Commission (http://www.ndrc.gov.cn) Price Supervision Bureau Sub-station (http://jjs.ndrc.gov.cn/), click "Anti-monopoly Guide on the Automobile Industry (Draft for Comment)", put forward opinions and suggestions on the Guide, and send them to the National Development and Reform Commission (Price Supervision Bureau).
At the same time, the National Development and Reform Commission announced the feedback channel, including address: No.38 Yuetan South Street, Xicheng District, Beijing, Price Supervision Bureau of the National Development and Reform Commission, zip code: 100824. E-mail: wudm@ndrc.gov.cn. (Zhongxin. com auto channel)
Attachment: Anti-monopoly Guide on Automobile Industry (Draft for Comment)
Price Supervision Bureau of National Development and Reform Commission
March 23, 2016
The State Council Anti-monopoly Committee
Anti-monopoly guide on automobile industry
(Draft for Comment)
(March 2016)
I. General principles
Automobile industry is an important pillar industry of national economy, which plays an important role in promoting economic growth, technological innovation, employment and social development. In order to prevent and stop the monopolistic behavior of the automobile industry, reduce the cost of administrative law enforcement and operator compliance, promote scientific and effective anti-monopoly supervision, protect fair competition, safeguard consumer interests and social public interests, and promote the healthy development of the automobile industry, this guide is formulated in accordance with the Anti-monopoly Law of the People’s Republic of China (hereinafter referred to as the Anti-monopoly Law).
(A) Concept definition
1. Automobile refers to a vehicle driven or towed by power and having four or more wheels, which is used for carrying people and/or goods, towing people and/or goods, and for special purposes. It can be divided into two categories: passenger cars and commercial vehicles. For further classification of passenger cars and commercial vehicles, please refer to the relevant national standards (GB/T3730.1-2001 Terms and Definitions of Types of Cars and Trailers).
2. New energy vehicles refer to vehicles that use new power systems and are driven entirely or mainly by new energy sources, mainly including pure electric vehicles, plug-in hybrid vehicles and fuel cell vehicles.
3. Second-hand cars refer to cars that have been traded and transferred ownership from the completion of registration procedures to the national compulsory scrapping standards.
4. Automobile suppliers refer to operators who provide automobiles, after-sales accessories and supplies, including:
(1) automobile manufacturers;
(2) The general automobile dealer established or authorized by the automobile manufacturer;
(3) Automobile importers engaged in automobile wholesale business.
5. Spare parts suppliers refer to operators who produce or provide automobile parts for initial assembly and after-sales parts.
6. Automobile dealers refer to operators who engage in automobile distribution and service independently of automobile suppliers. In practice, car dealers can assume the role of car repairers at the same time, but car sales and after-sales service can also be separated from each other.
7. Automobile repairers refer to operators who provide automobile repair and maintenance services.
8. End users, as far as automobiles are concerned, refer to the owners of automobiles (subject to the motor vehicle registration certificate) and other persons who have the legal right to use automobiles (such as automobile lessees). As far as after-sales automobile accessories and supplies are concerned, it includes: (1) the owner of the motor vehicle who purchased these products and other people who have the legal right to use the automobile; (2) Repairers who use these products for repair rather than resale.
9. Auto parts are classified according to the standards of use, brand, supply channel and quality, including initial parts, double standard parts, after-sales parts, original parts and homogeneous parts.
(1) Initial assembly parts refer to the parts used to produce and assemble new cars.
(2) Double-label parts refer to the initial assembly parts and after-sales parts marked with the trademarks, logos and part codes of the automobile manufacturer and the parts manufacturer.
(3) After-sale accessories refer to products installed in automobiles to replace the parts initially installed in automobiles, including lubricants necessary for automobiles, but excluding fuel.
(4) Original spare parts refer to after-sales spare parts provided by automobile suppliers or third parties designated by automobile suppliers, which are manufactured according to the specifications and product standards of automobile parts initially installed by using automobile suppliers’ brands or brands designated by automobile suppliers.
(5) Homogeneous parts, also known as parts with equivalent quality, refer to after-sales parts that have obtained relevant certification and the quality is not lower than that of automobile parts initially installed, but do not include original parts.
10. Maintenance technical information refers to the technical information necessary for automobile diagnosis, testing and maintenance in order to maintain or restore the technical condition and working ability of the automobile when it leaves the factory, prolong the service life of the automobile and ensure that the automobile meets the requirements of safe and environmentally friendly use.
(2) Definition of relevant markets
The automobile industry has a long industrial chain and various business types in the upper, middle and lower reaches. The definition of relevant commodity markets and regional markets follows the general principles and methods defined in the Anti-monopoly Law and the Guide of the State Council Anti-monopoly Committee on Defining Relevant Markets, and at the same time, the characteristics of the automobile industry and the specific circumstances of individual cases are considered.
The basic basis for defining the relevant market of the automobile industry is substitution analysis. In a case, the demand substitution is firstly investigated, and then the supply substitution is investigated. For example, automobile distribution consists of two parts: wholesale and retail. Wholesale is for automobile suppliers and retail is for end users. According to the specific circumstances of the case, it may be necessary to define automobile wholesale and retail as subdivided related markets respectively; The automobile distribution market can be further subdivided from the perspective of supply substitution and demand substitution.
The automobile after-sales market can be further subdivided into after-sales parts distribution market and after-sales maintenance market. In the automobile after-sales market, the after-sales maintenance service of a specific brand and model requires the use of after-sales accessories suitable for the brand and model, based on the maintenance technical information of the specific brand and model. From the perspective of demand substitution and supply substitution, the compatibility and locking effect of automobile aftermarket exist objectively, so automobile brand has become an important related factor to be considered when defining automobile aftermarket.
Second, the monopoly agreement
(1) Prohibition and exemption of monopoly agreements
1. Basic provisions of the Anti-Monopoly Law
Article 13 of the Anti-Monopoly Law prohibits horizontal monopoly agreements, article 14 prohibits vertical monopoly agreements, and article 15 stipulates the exemption situations and conditions of monopoly agreements. According to Article 15 of the Anti-Monopoly Law, if an operator claims that Article 13 or Article 14 of the Anti-Monopoly Law does not apply to his agreement, he must first prove that his agreement belongs to one of the circumstances listed in Article 15. Secondly, in addition to "to protect the legitimate interests in foreign trade and foreign economic cooperation" and "other circumstances stipulated by law and the State Council", the operator should also prove that his agreement will not seriously restrict the competition in the relevant market and enable consumers to share the benefits arising therefrom.
In order to prove that its agreement will not seriously restrict the competition in the relevant market, the operator can evaluate its market power in the relevant market. To evaluate the market power of operators, we can refer to the factors listed in Article 18 of the Anti-Monopoly Law. Evaluating whether an agreement can enable consumers to share the resulting benefits can be investigated from the perspectives of price reduction, quality improvement, technological innovation, technological upgrading, and more choices of products and services.
The specific procedures for operators to apply Article 15 of the Anti-Monopoly Law to claim exemption from monopoly agreements shall be stipulated separately by the relevant guidelines of the State Council Anti-Monopoly Committee.
2. Presumptive immunity
In order to reduce the cost of administrative law enforcement and the compliance cost of operators, this guide lists some situations of geographical restrictions and customer restrictions set by operators who do not have significant market power, and it can be inferred that the provisions of Article 15 of the Anti-Monopoly Law are applicable. Law enforcement practice and theoretical research have proved that these situations can usually improve the quality of distribution services, improve distribution efficiency, enhance the operating efficiency and competitiveness of small and medium-sized dealers, generally do not seriously restrict the competition in relevant markets, and enable consumers to share the benefits arising therefrom, thus meeting the conditions stipulated in Article 15 of the Anti-Monopoly Law.
It is not necessarily reasonable, scientific and operable to set a fixed market share standard to evaluate whether operators have significant market power. However, taking the competition evaluation of vertical agreements as an example, law enforcement practice and theoretical research show that it accounts for 25%— Operators with a market share below 30% may be considered as having no significant market power.
However, according to the specific circumstances of a case, if there is evidence to prove that the operator’s behavior does not conform to the provisions of Article 15 of the Anti-Monopoly Law, the anti-monopoly law enforcement agency can still apply Article 14 of the Anti-Monopoly Law to the relevant behavior.
3. Case exemption
In addition to the situations listed in this Guide where Article 15 of the Anti-Monopoly Law can be presumed to be applicable, if an operator claims that Article 15 of the Anti-Monopoly Law can be applied to his agreement, he needs to prove that his agreement meets the statutory conditions of Article 15 of the Anti-Monopoly Law according to the specific circumstances of each case, and judge whether his agreement can be exempted from each case.
(2) Horizontal monopoly agreement of automobile industry
1. Some types of horizontal agreements, such as research and development agreements, specialization agreements, technical standardization agreements, joint production agreements, joint procurement agreements, etc., can usually improve efficiency and promote competition, which is conducive to increasing consumer welfare. For example, horizontal cooperation agreements in the R&D and production of new energy vehicles can enable competitors to share investment risks, improve efficiency and promote social public interests. Therefore, the automobile business operators who have reached the aforementioned horizontal agreements that can improve efficiency and promote competition can prove that the provisions of Article 13 of the Anti-Monopoly Law are not applicable to their agreements according to Article 15 of the Anti-Monopoly Law.
2. Regarding the competition analysis of horizontal monopoly agreements, there is no significant difference between the automobile industry and other industries, so this guide will not further refine it. The anti-monopoly regulation of horizontal monopoly agreements in the automobile industry shall be handled by the anti-monopoly law enforcement agencies in the State Council according to the Anti-monopoly Law, the Provisions on Anti-price Monopoly, and the Provisions on Prohibition of Monopoly Agreements by the Administrative Law Enforcement Agencies for Industry and Commerce.
(3) Vertical monopoly agreement of automobile industry
1. The form of the agreement and the cumulative effect of similar agreements.
In practice, vertical agreements can be expressed as direct restrictions, such as the resale price of dealers stipulated in the contract terms; It can also be manifested as indirect restrictions, such as fixing the profit rate and discount level of dealers, canceling rebates, refusing to supply or canceling the authorization agreement in advance for dealers who do not comply with the suggested price through price monitoring.
In China automobile market, vertical agreements are mainly embodied in dealer agreements, and may also be reached through commercial policies, circulars, information and notices. Anti-monopoly law pays attention to the effect of behavior rather than the form, and the key to evaluate monopoly behavior is the actual effect of restricting competition. According to its competitive effect, unilateral acts in the form of business policies may be recognized as constituting a vertical monopoly agreement regulated by the Anti-Monopoly Law.
Usually, the implementation of vertical agreements by a single operator will limit intra-brand competition and harm the interests of consumers. In particular, when most or even all operators in the relevant market adopt similar vertical agreements, and all kinds of vertical restrictions in the agreements form a network, covering the relevant markets in an all-round way, the binding force of inter-brand competition will be obviously weakened. The cumulative effect caused by similar vertical agreements can significantly limit the competition in related markets, make related products and services priced above the competitive level, and ultimately lead to the loss of consumer welfare.
2. Fixed resale price and limited minimum resale price
Article 14 of the Anti-Monopoly Law explicitly prohibits the fixed resale price and the limited minimum resale price with obvious competitive effect. The negative effects of vertical price restrictions are mainly manifested in maintaining high prices, promoting horizontal and vertical collusion, weakening inter-brand competition and intra-brand competition, and excluding competitors.
Of course, according to the principle of case analysis, if the operator can prove that these price restrictions will not seriously restrict the competition in the relevant market and enable consumers to share the benefits arising therefrom, the operator can claim case exemption for the fixed resale price and the limited minimum resale price according to Article 15 of the Anti-Monopoly Law.
In practice, the common situations in which automobile industry operators advocate the vertical price restriction of case exemption based on Article 15 of the Anti-Monopoly Law include:
(1) Fixed resale price and limited minimum resale price during the promotion period of new energy vehicles.
In order to save energy, protect the environment and avoid "service hitchhiking", during the promotion period of new energy vehicles, it is necessary to fix the resale price and limit the minimum resale price in a short period (for example, within 9 months from the date when the automobile supplier issues the first batch invoice for a specific vehicle) to encourage dealers to promote new energy products, increase sales efforts and expand the market demand for new products, thus promoting the successful listing of new products and giving consumers more choices.
(2) resale price limit in the sales of dealers who only assume the role of middlemen.
Dealer sales, which only assume the role of middleman, refers to the sales of car suppliers and specific third parties or specific end customers (such as employees of car suppliers and dealers, major customers, advertising and sponsors, etc.) through direct negotiation, and only through authorized dealers to complete the sales of car delivery, collection and invoicing. In these transactions, authorized dealers only play the role of middlemen to help complete the transactions, which is different from full-fledged dealers.
(3) resale price restrictions in government procurement
In practice, government procurement projects usually require automobile suppliers participating in joint bid to provide consistent or fixed retail price quotations after coordination with their dealers. For nationwide procurement projects, government procurement departments sometimes directly contact automobile suppliers, who have no direct sales or retail licenses and need to reach an agreement with specific dealers on retail prices in order to realize their quotations for government procurement. Similar to dealer sales that only assume the role of middleman, dealers in government procurement are different from dealers in full sense if they only assist in completing the transaction.
(4) the resale price limit in e-commerce sales of automobile suppliers.
The pricing behavior in e-commerce sales is governed by the Anti-Monopoly Law, the Anti-Price Monopoly Provisions and other laws and regulations. However, in practice, automobile suppliers sell cars at a uniform price for a certain period of time through e-commerce platforms, and directly reach a deal with unspecified end users, and only complete the sales of delivery, collection, invoicing and other trading links through dealers. In these e-commerce transactions, dealers only assume the role of middlemen to help complete the transaction, which is different from the dealers in full sense.
3. Suggested price, guided price and limited maximum price
It is usually efficient for automobile suppliers to set suggested prices, guided prices or maximum prices for reselling automobiles and automobile after-sales accessories and supplies to dealers and repairers, and to set suggested prices, guided prices or maximum prices for after-sales service working hours to dealers and repairers, and these behaviors generally do not exclude or restrict competition.
However, if, due to the pressure or encouragement of one party to the agreement, the suggested price, the guided price or the highest price are executed by most or all dealers, and the substantial effect is equivalent to the fixed resale price or the minimum resale price, these behaviors may be identified as fixed resale price or the minimum resale price according to the specific circumstances of each case.
4. Geographical restrictions and customer restrictions
Geographical restriction means that the supplier promises to supply one or several dealers in a specific distribution area, and the dealers promise not to sell in other distribution areas. Customer restriction means that the supplier restricts the distributor to sell the goods only to specific customers or not.
Geographical restrictions and customer restrictions may weaken intra-brand competition, divide the market and encourage price discrimination. Effective geographical restrictions and customer restrictions make it difficult for other distributors to obtain supplies, hinder the promotion of more efficient new distribution models, and keep the prices of goods and services at a high level. However, sometimes geographical restrictions and customer restrictions can also improve distribution efficiency. For example, when dealers need to make specific investments to protect and establish brand image, geographical restrictions can produce significant efficiency.
(1) The geographical restrictions and customer restrictions set by automobile operators who do not have significant market power are efficient and justified, and can usually meet the provisions of Article 15 of the Anti-Monopoly Law, which can be applied. The foregoing situations mainly include:
It is agreed that the distributor will only conduct distribution activities in its business premises, but it will not restrict the passive sales of the distributor or cross-supply between distributors.
Passive sales refer to the delivery of goods or services to individual customers at their request without active marketing. For example, the behavior of consumers in a place to buy a car in b place is the passive sales of dealers.
Compared with traditional sales methods, e-commerce sales are aimed at a wider and more diverse customer base. If a customer browses the dealer’s website or the third party’s website and contacts the dealer, and the contact leads to a sales transaction, the sales will be regarded as passive sales. For the information sent by the distributor to an unspecified audience through its own or third-party website, if the customer actively chooses to accept it (for example, subscribing to the promotion information of the distributor online) and actively contacts the distributor to generate a sales transaction, the transaction will be regarded as the passive sales of the distributor. However, if the distributor sends out advertisements or promotional information to a specific audience, such acts will constitute active sales.
Restrict dealers from actively selling exclusive territory or exclusive customers reserved by automobile suppliers for another dealer.
Restrict wholesalers from selling directly to end users.
In order to prevent accessories from being used by customers to produce the same products as automobile suppliers, dealers are restricted from selling accessories to such customers.
It is not necessarily reasonable, scientific and operable to set a fixed market share standard for evaluating the market power of operators. However, taking the competition evaluation of vertical agreements as an example, law enforcement practice and theoretical research show that operators who occupy less than 25%-30% of the relevant market share may be considered as having no significant market power.
(2) The following four types of geographical restrictions and customer restrictions can usually severely restrict competition, lead to high prices and reduce consumers’ choices, so the provisions of Article 15 of the Anti-Monopoly Law cannot be directly applied. Automobile business operators who engage in the following acts may claim individual exemption if they can prove that their acts conform to the provisions of Article 15 of the Anti-Monopoly Law.
Restrict the passive sales of dealers.
Restrict cross-supply between dealers.
Restrict dealers and repairers from selling accessories needed for automobile maintenance services to end users.
Except in the case of OEM agreement, automobile manufacturers reach an agreement with suppliers of accessories, repair tools, testing instruments or other equipment to restrict such suppliers from selling relevant accessories, repair tools, testing instruments or other equipment to dealers, repairers or end users. For the determination of the OEM agreement, please refer to Appendix (1) of this Guide.
5. Indirect vertical restrictions are imposed on after-sales maintenance services and parts circulation through warranty clauses.
For the maintenance work and replacement parts within the warranty scope, the automobile supplier usually requires the automobile end user to use the original parts in the authorized maintenance network to complete the maintenance work. However, by indirectly imposing unreasonable vertical restrictions on after-sales service and after-sales parts circulation through warranty clauses, independent repairers can be excluded, parts supply and distribution channels can be reduced, and finally the price of automobile maintenance services can be increased.
The unreasonable vertical restrictions mentioned above include but are not limited to:
(1) As a condition for the automobile supplier to fulfill the warranty responsibility, the automobile supplier shall hand over all the maintenance work that is not covered by the warranty by the automobile end user to the authorized maintenance network;
(2) For after-sales parts that are not covered by the warranty, the automobile supplier requires to use the original parts as a condition for fulfilling the warranty responsibility;
(3) Automobile suppliers have no justifiable reason to restrict their maintenance network to provide after-sales maintenance services for parallel imported cars.
6. Other vertical restrictions on the ability of dealers and repairers to sell and serve.
The following vertical restrictions imposed by automobile suppliers through agreements and business policies may improperly restrict the sales and service capabilities of dealers and repairers. If they lead to significant elimination and restriction of competition, increase the price of automobile distribution and maintenance channels and harm the interests of consumers, the relevant agreements and business policies may be recognized as vertical monopoly agreements regulated by the Anti-Monopoly Law.
(1) The automobile supplier forces the dealers or repairers to tie up the cars, after-sales parts, fine products, consumables, repair tools, testing instruments, etc. that they have not ordered.
Tying by suppliers to distributors is a vertical restriction, which may lead to exclusive purchase obligation of tying products, thus excluding competition in tying products market.
(2) Automobile suppliers force dealers or repairers to accept unreasonable sales targets, inventory varieties and quantities of automobiles or after-sales parts.
Suppliers and distributors can agree on the sales target, inventory variety and quantity of contract products through equal consultation. However, suppliers unilaterally set and force dealers to accept unreasonable sales targets, inventory varieties and quantities, which may lead dealers to assume exclusive purchase obligations of contract products, thus excluding competition in relevant markets.
(3) The automobile supplier compels the dealer to bear the expenses of advertising, auto show and other publicity in the name of the automobile supplier, or compels the dealer to carry out advertising at his own expense in a specific way and in a specific media.
Automobile suppliers usually agree with dealers to participate in joint promotion and marketing activities and ask dealers to share reasonable expenses. In addition, in order to ensure the overall effect of brand promotion, automobile suppliers usually set reasonable quality standards for dealers to select media. However, forcing dealers to bear the promotion expenses in the name of automobile suppliers, or restricting the specific ways and media for dealers to carry out advertising, may unduly limit dealers’ ability to decide their own promotion and marketing activities, indirectly increase the cost of distribution and after-sales channels, and ultimately increase the burden on consumers.
(4) Automobile suppliers restrict dealers and repairers to use only the services of specific paid design units or construction units, or restrict dealers and repairers to use only specific brands, suppliers and supply channels for building materials, general equipment, information management systems and office facilities.
In order to ensure the brand image, automobile suppliers usually stipulate or stipulate quality standards for the design, decoration and office facilities of dealers and repairers’ business premises through agreements or business policies. In addition, based on the consideration of intellectual property protection, automobile suppliers usually specify the procurement channels of their automobile brand logos. However, it is usually not necessary to restrict the design of business premises and office facilities to specific third-party brands, suppliers and supply channels to ensure the brand image of automobiles. Such restrictions may unduly restrict the competition in relevant markets and indirectly increase the cost of distribution and after-sales channels.
(5) When the automobile supplier refuses to supply or terminates the distribution agreement in advance, it shall clearly list the reasons.
In order to prevent automobile suppliers from refusing to supply to dealers or terminating the distribution agreement in advance without justifiable reasons, such as refusing to implement the minimum resale price set by automobile suppliers, purchasing original parts and homogeneous parts from channels other than automobile suppliers for after-sales maintenance, etc., the notice of automobile suppliers refusing to supply or terminating the distribution agreement in advance shall clearly list the reasons.
Iii. Abuse of dominant market position
Article 17 of the Anti-Monopoly Law prohibits the abuse of market dominance, including unfair high prices and low prices, as well as selling goods below the cost price without justifiable reasons, refusing to trade, restricting trading, tying and attaching other unreasonable trading conditions, and differential treatment.
At present, the competition in China’s new car sales market is fierce, but the lock-in effect and compatibility problems in the after-sales market may limit and weaken the effective competition in the after-sales market and harm the interests of consumers. In defining the automobile aftermarket in a case, automobile brand is an important related factor to be considered. According to the definition of market dominance in Article 17 of the Anti-Monopoly Law and the factors that should be based on in Article 18 of the Anti-Monopoly Law, automobile suppliers who do not have a dominant position in the new car sales market may be identified as having a dominant position in the after-sales market of their brand cars.
(A) after-sales parts production
Except for the parts produced according to the OEM agreement, the automobile manufacturers that have a dominant position in the after-sales market of their brand cars should not restrict the production of "double-labeled parts" for the accessory manufacturers that initially installed automobiles without justifiable reasons. That is to say, automobile manufacturers should not reach an agreement with the parts manufacturers who provide them with initial parts, and prohibit the latter from affixing their own trademarks, logos and part codes on the initial parts of automobiles. Double standard parts aim to improve the ability of consumers and repairers to identify homogeneous parts and promote effective competition in the automotive aftermarket.
For the determination of the OEM agreement, please refer to Appendix (1) of this Guide.
(2) Supply and circulation of after-sales parts
Automobile manufacturers that have a dominant position in the after-sales market of their brand cars should not restrict the supply and circulation of after-sales parts without justifiable reasons, including:
1. Restrict dealers and repairers from purchasing after-sales parts, that is, restrict dealers and repairers from purchasing homogeneous parts or original parts (including parallel imported parts) from other channels.
Suppliers who do not have a dominant market position set exclusive purchase obligations for their distribution channels for a certain period, which can improve the quality standards of distribution networks, help to establish and maintain brand image, improve the attractiveness of brands to end consumers and increase sales. However, if there are obvious barriers to entry or expansion in the relevant market, the exclusive procurement obligation may block competitive suppliers, weaken the incentive mechanism for innovation, raise the price of goods in distribution channels and limit consumers’ choices.
In practice, automobile suppliers, which have a dominant position in the after-sales market of their brand cars, impose unreasonable sales quantity targets, inventory varieties and quantities on dealers, which can usually substantially restrict dealers and repairers from purchasing accessories.
However, automobile suppliers have the right to require their authorized system members to use only original and homogeneous parts, and to require their authorized system members to ensure consumers’ right to know and the traceability of parts. Automobile suppliers also have the right to claim that members of the authorization system can use remanufactured parts and recycled parts in maintenance work only when consumers know and clearly choose and ensure the traceability of accessories. The above situation does not affect the civil liability of authorized dealers, authorized repairers and parts suppliers.
2. Restrict accessories suppliers, distributors and repairers from exporting after-sales accessories, including:
(1) Except for the parts produced according to the OEM agreement, all parts are required to be "returned to the factory", that is, parts suppliers are restricted from supplying parts with their own brands to the after-sales channels;
(2) Restrict the cross-supply of after-sales parts between dealers, between repairers and between dealers and repairers;
(3) Restrict dealers and repairers from selling accessories needed for automobile maintenance services to end users.
(3) Availability of maintenance technical information, test instruments and maintenance tools
Automobile after-sales maintenance usually needs to be completed by qualified technicians based on the technical information of specific brands of automobiles. Automobile suppliers are usually the only source of all maintenance technical information of their brand cars. If the repairer can’t get the necessary technical information for testing, repairing and replacing automobile parts, the maintenance service it provides may lead to dangerous driving, high emissions and air pollution. At the same time, the market position of repairers is squeezed, which leads to the reduction of maintenance channels, the increase of automobile maintenance prices and the limited choice of consumers.
Effective competition in the automobile after-sales market needs to ensure the availability of after-sales maintenance technical information, as well as the availability of test instruments and maintenance tools. Therefore, automobile suppliers that have a dominant position in the aftermarket of their brand automobiles should not restrict the availability of maintenance technical information, test instruments and maintenance tools without justifiable reasons, including:
1. Restrict the rights and channels for the repairer to obtain the technical information of automobile maintenance of a specific brand;
2. To reach an agreement with suppliers of repair tools, testing instruments or other equipment to restrict such suppliers from selling relevant repair tools, testing instruments or other equipment to dealers and repairers.
Fourth, the concentration of operators
The Anti-Monopoly Law prohibits business operators from implementing concentration that has or may have the effect of eliminating or restricting competition. There is no significant difference between the automobile industry and other industries in the competitive analysis of operator concentration.
The anti-monopoly review on the concentration of automobile operators shall be handled by the anti-monopoly law enforcement agencies in the State Council according to the Anti-monopoly Law, the Interim Provisions on Evaluating the Impact of Concentration of Operators, the Provisions on Additional Restrictive Conditions for Concentration of Operators (for Trial Implementation) and other laws and regulations.
In the anti-monopoly review of automobile operators, this guide explains and guides the automobile monopoly agreement and the abuse of market dominance, which is of reference significance for the anti-monopoly review of automobile operators.
V. Abuse of administrative power to exclude or restrict competition
The Anti-Monopoly Law prohibits administrative organs and organizations authorized by laws and regulations to manage public affairs from abusing administrative power to exclude or restrict competition.
Abuse of administrative power to exclude or restrict competition in the automobile market shall be dealt with by the anti-monopoly law enforcement agencies in the State Council according to the Anti-monopoly Law, the Provisions on Anti-price Monopoly, and the Provisions of the Administration for Industry and Commerce on Stopping Abuse of Administrative Power to Exclude and Restrict Competition.
Abuse of administrative power in automobile trading excludes and restricts competitive behavior, which hinders the healthy development of automobile market and harms consumers’ interests. For example, the abuse of administrative rights in second-hand car trading excludes and restricts competition, which is not conducive to green recycling consumption and the sustainable development of the automobile market. It also limits the rights and interests of car owners to dispose of property rights, prolongs the cycle of changing cars for consumers, and indirectly affects the new car sales market.
Therefore, administrative organs and organizations authorized by laws and regulations to manage automobile circulation affairs should not violate the provisions of Chapter V of the Anti-Monopoly Law to exclude or restrict competition, including but not limited to:
(a) to formulate regulations that restrict the access to the automobile market and the free circulation of automobiles;
(2) Restricting or disguised restricting operators from operating automobile business by setting business opening conditions or qualification requirements with the effect of excluding and restricting competition;
(3) Restricting or restricting in disguised form the purchase, lease and use of the automobile trading system, facilities and business premises provided by its designated operators;
(four) the behavior of restricting the movement of used cars, that is, the second-hand cars must be traded at the place where the vehicles are registered;
(five) to restrict the second-hand car trading, the invoice must be issued by the second-hand car trading market.
VI. Supplementary Provisions
(A) the identification of the OEM agreement
OEM agreement, also known as entrustment processing agreement, agency processing contract, contracting contract and OEM processing contract in practice, means that the entrusting party provides the necessary technology and equipment for the entrusted party, and the entrusted party produces products, provides services or completes the work for the entrusting party.
If the parts manufacturer uses the intellectual property rights of the automobile manufacturer to process the automobile parts according to the requirements of the automobile manufacturer, the relationship between the automobile manufacturer and the parts manufacturer is entrusted processing, and an OEM agreement is reached. There are significant differences between OEM agreement and parts supply agreement between parts manufacturers and automobile manufacturers who use their own intellectual property rights.
Whether an agreement constitutes a real OEM agreement needs to be evaluated on a case-by-case basis, and it can be determined after evaluating the substantive content of the agreement, rather than directly according to the form of the agreement. In short, if the technology and equipment provided by the automobile manufacturer (the entrusting party) are necessary for the parts manufacturer (the entrusted party) to produce contract products or provide contract services under reasonable conditions according to the requirements of the automobile manufacturer, then the parts manufacturer’s identity is "OEM" and is not regarded as an independent parts supplier in the market.
However, when an automobile manufacturer provides tools, intellectual property rights or know-how to an accessory manufacturer, if the accessory manufacturer already has such tools, intellectual property rights or know-how that can be used independently or can obtain such tools, intellectual property rights or know-how on reasonable terms, the technology and equipment of the automobile manufacturer are not necessary for the accessory manufacturer to perform the agreement. For example, if the automobile manufacturer only provides the general descriptive information of the contract products, but restricts the accessory manufacturer from supplying accessories to the aftermarket under its own brand name, the automobile manufacturer essentially deprives the accessory manufacturer of the possibility of expanding business in the areas related to the agreement, and excludes and restricts the competition in the relevant markets, which may lead to high prices and reduce consumers’ choices.
Specific factors that can be considered in evaluating "technology or equipment necessary for producing contract products or providing contract services" include but are not limited to:
1. Intellectual property rights owned or disposed of by the entrusting party, including: invention patents, utility models, copyrighted designs, registered designs or other intellectual property rights;
2. Proprietary technologies such as production processes owned or disposed of by the entrusting party;
3. Research reports, plans and other documents prepared by the entrusting party to match the information provided by it.
(two) the entry into force, update and supplement of the guide
This guide will be implemented on * * *. The Anti-monopoly Committee of the State Council will continue to investigate and evaluate the overall competition situation in China’s automobile market, and update and supplement this guide according to the development trend of China’s automobile industry.