What Can the EU Learn from the Chinese Anti-Monopoly Guidelines for the Platform Economy Industries?

Abstract

The rising economic importance and market power of many digital platforms raises concerns that they may engage in anti-competitive conduct and misuse their power to the detriment of competition and consumer welfare. Regulators worldwide resort to traditional ex-post antitrust methods or propose ex-ante regulatory frameworks. Given the global scale of operations of the platforms, regulators may find inspiration in approaches adopted in other jurisdictions. This paper draws attention to the Anti-Monopoly Guidelines for the Platform Economy Industries promulgated on 7 February 2021 by the Antimonopoly Commission of the State Council of China. The guidelines 'put on paper' what has been a matter of theoretical debate in the EU competition law and its approach to digital markets. For example, they expressly state that a platform can, in certain circumstances, constitute an essential facility, that requiring a counterparty to the transaction to choose between two competitive platforms ('either-or-choice') can constitute exclusive dealing or that implementing differentiated prices and other transaction conditions based on big data can constitute discrimination ('big data discrimination'). Chinese experiences may be insightful to the EU which is on its quest to find a proper balance between ex ante and ex post regulation of digital platforms.

Keywords: China, digital platforms, regulation, enforcement