On The Anti-Monopoly Law Regulation Of Data-Driven Concentration Of Undertakings

In 2020,the Central Committee of the Communist Party of China and the State Council’s "Opinions on Building a More Complete Factor Market Allocation System and Mechanism" proposed that data and land,labor,capital,and technology are collectively referred to as the five major production factors.As a new type of economic power,data has become an important source for operators to seek economic benefits and gain competitive advantages,which treat that as the core resource of the digital economy.As the development of digital technology,the continuous acceleration of industrial digitization and digital industrialization,China’s digital economy has significant developed,even 2-3 times faster than the rate of GDP growth.Therefore the growth of China’s economy has entered a new age which combine between traditional and digital economy.Thus this trend not only provide opportunities but also required govern.In this case,the legal professionals face the challenge that the traditional systems such as legality,norms and regulatory methods suitable to the digital economy.For solving those problems,in2021,the National People’s Congress passed the "Data Security Law of the People’s Republic of China"(hereinafter referred to as the "Data Security Law")and the "Personal Information Protection Law of the People’s Republic of China"(hereinafter referred to as the "Personal Information Protection Law").The dimensions of security and personal information protection have given a strong response.The above two laws have become the cornerstones of ensuring the sound development of my country’s digital economy.In October 2021,General Secretary Xi Jinping put forward requirements for digital economy competition legislation and law enforcement in the 34 th collective study of the Political Bureau of the CPC Central Committee on promoting the healthy development of my country’s digital economy,emphasizing the need to regulate the development of the digital economy and persist in promoting development We must grasp both hands with regulatory standards,and we must be hard at both hands,and we should standardize in development and develop in standardization.It is necessary to improve the market access system,the fair competition review system,and the fair competition supervision system,establish a comprehensive,multi-level,and three-dimensional supervision system to realize the supervision of the whole chain and all fields before and after the fact.It is necessary to correct and standardize behaviors and practices that harm the interests of the masses and hinder fair competition in the development process,prevent platform monopoly and disorderly expansion of capital,and investigate and deal with monopoly and unfair competition in accordance with the law.In recent years,cases of data-driven operator concentration have emerged one after another.They present the three characteristics of huge transaction scale,large proportion of vertical and mixed concentration,and online and offline integration.Therefore,this problem has increasingly become the focus of antitrust issues of competition law enforcement agencies and even the whole society.The positive and negative effects of data on competition in the digital economy have increased the levels of difficulty to regulations by competition law enforcement agencies,and the concentration of data-driven operators has therefore challenged the antitrust law.First,the position of data has lower in the relevant market definitions of the regulation in operator concentration.The ubiquitous free business model and non-price competition phenomenon in the digital economy make the traditional relevant market definition methods such as alternative analysis no longer have full capable to the data-driven operator concentration regulation.The second the standard of traditional economy has not fully definite the regulatory scope of data-driven business operator concentration.The data-driven concentration of operators has different characteristics from the concentration of operators in the traditional economy,and the concentration behavior among operators with advantageous data economic power in the relevant market may not arouse the attention of the traditional operator concentration declaration system.Thirdly,the lack of quality competition review represented by personal data has led to misjudgments by competition law enforcement agencies.On the one hand,data-driven network effects make market entry barrier review analysis more complicated,its impact on traditional unilateral,coordination,and blockade review should also cause sufficient attention to the regulation of operator concentration.On the another hand,operators’ emphasis on personal information protection is in sharp contrast with competition law enforcement agencies’ calm attitude on whether personal information protection can become a quality factor of competition review.Finally,structured relief has inherent deficiencies in the centralized relief of data-driven operators.It is very difficult to implement structural relief for data establishment and collection,due to gather of the data is processed by algorithms,therefore its value is reflected in another form.Even if the data establishment of all parties in the concentration are separated,the value of the original data may be in other forms It was retained,so the relief goal could not be achieved.Those arguments presented the practical problems to operators of the centralized law enforcement which triggered thinking.Firstly,the term of relevant market need to be definited.In the digital economy,the time factor is prominent in the definition of the market which related to the concentration of data-driven operators.Therefore the definition of relevant market must based on the theory of product life cycle that conducive to the realization of fairness,efficiency and public interest in the regulation of operator concentration in stages,and it is conducive to the classify the choices of operator concentration competition review and analysis methods.Therefore,the definition of the relevant product market can be divided into three situations: "the products of the concentrated parties are both in the mature stage","the products of the concentrated parties are both in the incubation stage or development stage" and "the products of the concentrated parties are in the incubation or development stage and the mature stage”.Moreover,due to data productions are greatly affected by technological progress,therefore it has strong timeliness and technology dependence characteristics,which strongly impact on the definition of relevant markets.Therefore,it can be determined by determining datarelated products.On the basis of the market,a time interval limitation method is added to define the relevant market for data products;in addition,the traditional hypothetical monopolist test has the defect of a single dimension,which affects its role in the definition of the relevant market for the concentration of data-driven operators.Thus it should be considered the idea of multi-factor comprehensive testing which determine the main factors defined by the relevant market and the degree of influence of each factor that related to the characteristics of the industry involved in a specific case,and transform the hypothetical monopolist test to reach the requirements of antitrust regulations in the digital economy.Secondly,the application standards.The traditional declaration standard has the defects of single dimension and poor timeliness,so we should reconstruct the dynamic concentration declaration standard to adapt to the changes of external environment with the data-oriented multi-dimensional transformation idea.Thirdly,the review basis.The impact of data network effects on market entry barriers is quite different from traditional network effects in terms of mechanism,scope and degree of influence.Therefore,it should become one of the important basis for data-driven operator concentration review.In addition,with the development of the digital economy,quality as a representative factor has gradually become the core content of competition.It should start with the following three aspects: "whether concentrated behavior produces merger-specific efficiency","whether the quality factor is an important competitive dimension in the relevant market"and "quality factor Whether the serious weakening is entirely due to the competition process or the changes in the market structure caused by the concentrated behavior",which determines the necessity of the competition review of quality factors.Fourthly,centralized relief.The concentration of data-driven business operators has a tendency towards behavioral relief measures.The legalization of the refinement of the existing behavioral relief system and the strengthening of multidisciplinary behavioral relief methods is that behavioral relief measures block unilateral,coordination and blockade effects and trigger countermeasures those solutions have became an significant important guarantee for competitive effects.The innovation of the relief supervision mechanism is the key to the function of the data-driven operator concentration relief system.The effective implementation of the supervision and management system instead of the supervision trustee system and the review system is its important safeguard.In summary,the government must adapt a suitable legal system and the public,especially the individual in digital industry has to aware for improving the China’s datadriven business operator concentration anti-monopoly regulatory system Firstly,the role of government in the legislative model,the data competition legal system must undergo a process from decentralization to concentration.In this case,it may be an individual role in certain aspects of the competition law system.With the continuous in-depth research of data competition law and the continuous enrichment of judicial practice,it will eventually become an independent legal perspective and attract the attention of the public.On the another hand,it has to make necessary improvements to the existing regulatory system for concentration of business operators,in terms of adding data and other multi-dimensional relevant market definition factors,diversifying reporting standards,introducing non-price multi-dimensional competition analysis systems,and creating relief supervision and management systems.