数字经济领域扼杀性并购的反垄断规制

Anti-monopoly Regulation of Killer Acquisitions in the Field of Digital Economy

数字经济领域的大型企业针对初创企业发起的扼杀性并购已成为我国反垄断学界与业界关注的重点。该类并购直接遏制了初创企业的发展,消除了大型企业的竞争威胁,加剧了其他企业与大型企业之间的差距,阻碍了相关领域的技术开发,损害了消费者利益。即使可被界定为经营者集中,扼杀性并购依旧难以通过现行制度予以回应。一方面,现行经营者集中事前申报标准难以应对扼杀性并购;另一方面,在现行实质审查标准下,执法机构主要分析扼杀性并购对创新的影响,经营者集中制度如何实现对创新因素的分析仍须进一步明确。为应对扼杀性并购,《国务院关于经营者集中申报标准的规定》应专门增设回应该类并购的事前申报标准;《经营者集中审查规定》应当明确执法机构分析集中对创新造成影响所依托的主要因素,并确立经营者通过创新进行抗辩的相关制度;执法机构还可针对超级平台企业设置“特别名单”制度,以强化对该类企业扼杀性并购的申报与审查。

In the new era of reform and opening up as well as socialist modernization, the Report of the 20th National Congress of the Communist Party of China has pointed out the direction for regulating killer acquisitions in the field of digital economy. Ensuring the healthy development of the digital economy is an important part of “building a unified national market,deepening the market-oriented reform of factors, and building a high standard market system”.Preventing and responding to the anti-competitive effect caused by killer acquisitions of large digital enterprises is particularly important for maintaining the competitive order of the digital economy, and “standardizing and guiding the healthy development of capital according to law”. In this context, the killer acquisitions launched by large enterprises in the field of digital economy against start-ups have become the focus of China’s anti-monopoly academia and industry. Such mergers and acquisitions have directly curbed the development of start-ups, eliminated the competitive threat of large enterprises, exacerbated the gap between other enterprises and large enterprises, hindered the development of technology in related fields, and damaged the interests of consumers. Even if it can be defined as concentration of business operators, killer acquisitions are still difficult to respond through the current system. On the one hand, the current standards for prior declaration of concentration of business operators are difficult to deal with killer acquisitions;on the other hand, under the current substantive review standard, law enforcement agencies mainly analyze the impact of killer acquisitions on innovation, and how the concentration system realizes the analysis of innovation factors still needs to be further clarified. In order to deal with killer acquisitions, the Provisions of the State Council on the Reporting Standards for Concentration of Business Operators should specifically add the prior declaration standards for such mergers and acquisitions;the Provisions on the Examination of Concentration of Business Operators should specify the main factors relied on by law enforcement agencies to analyze the impact of concentration on innovation, and establish relevant systems for operators to defend through innovation;law enforcement agencies can also set up a “special list” system for super platform enterprises to strengthen the application and review of killer acquisitions of such enterprises. The identification and regulation of killer acquisitions in the field of digital economy requires law enforcement agencies to go deep into the daily operation of digital enterprises to find out the facts of the case. The ascertainment of facts and the acquisition of evidence both test the coping ability of law enforcement agencies. The improved system can only be verified and developed in practice. The problem in the field of digital economy should be solved in the interaction between theory and practice.