互联网平台企业滥用市场力量的杠杆作用认定——以“奇虎诉腾讯滥用市场支配地位案”为例

Internet Platfrom Enterprise Abusive Leveraging Market Power Determination:Take the Abuse of Dominant Market Position Case “Qihoo 360 v. Tencent” for Example

本文以奇虎诉腾讯案为例,分析在何种情况下平台企业利用市场力量的杠杆作用实施搭售和限制交易行为可能作为排除或妨碍竞争的直接证据。在平台企业进攻性地利用市场力量的杠杆作用情况下,如果平台企业搭售的产品缺乏可赢得竞争优势的产品优点并获得不成比例的市场份额,或者平台企业未能通过平台包络行为为消费者带来显著的规模效益等社会福利,那么前述两种情形都可能成为排除或妨碍竞争的直接证据;而在平台企业防御性地利用市场力量的杠杆作用情况下,如果平台企业占据了对市场竞争十分重要的关键资源,并出于防止其他竞争者进入市场的目的而实施限制交易行为,那么这一行为本身就可能成为排除或妨碍竞争的直接证据。

The core issue of the abuse of market dominant position case＂Qihoo 360 v. Tencent＂can be summarized as how to determine the internet platform enterprises＇ abusive leveraging of market power illegally in the context that platform players＇ cross-product-market competition becomes a universal practice. In view of the great difficulty of clearly defining the relevant market in the Internet platform related antitrust case, finding ＂direct evidence of exclusion or obstruction of competition＂could be beneficially taken as the starting point for analysis, which could also contribute to comprehensive analysis of the market position and the impact of accused monopolistic action on the market. On the fact that platform functions as a technical architecture and business model, and could be used as a tool by internet platform enterprises when leveraging market power across product market, this paper takes＂Qihoo360 v. Tencent＂as an example to analyze the situations under which platform enterprises leveraging its market power to conduct tying and exclusive dealing could serve as direct evidence of exclusion or obstruction of competition.Specifically, in the case of offensive leveraging of market power, if the product bundled by platform enterprises lacks product merits to obtain competitive advantages but still gains a disproportionate market share, or certain platform envelopment action is proved to be not able to bring social benefits such as significant scale economy, these situations could be considered as direct evidence of exclusion or obstruction of competition. In the case of defensive leveraging of market power, if the alleged platform enterprise occupies certain key resources crucial to competition and restricts its trading party in attempt to prevent others from gaining ground in its market, the exclusive dealing practice itself could be taken as direct evidence of exclusion or obstruction of competition.