Reserch On The Definition Of Data-Driven M&A Relevant Market

Data-driven mergers and acquisitions(hereinafter referred to as M&A),as a product of the digital economy era,has not yet been paid attention by domestic enforcement agencies.The difference between data-driven M&A and normal internet enterprises' M&A is that the purpose of M&A is mainly to obtain big data.Considering that big data has a negligible influence on market competition,data-driven M&A should be studied separately.In particular,it is necessary to separately define big data-related markets,so that we can fully evaluate the influence of data-driven M&A on big market competition.For data-driven M&A,the main purpose of merger is to obtain data,and generally it does not reflect big data transactions directly,it is difficult to conduct alternative analysis,making it difficult to define “big data-related market” or “data-trading market” by traditional relevant market definition methods.If the traditional related-market method is forced to define the big data-related market,the traditional related-market definition method will not be applicable because of the difference between the bilateral market,the free market,the negative price,and the quality standard.With the traditional relevant market definition method,the competitive attributes of big data are not fully valued,the competitive harm related to big data is not fully regulated,and the non-economic welfare of consumers is easy to be ignored.Therefore,the relevant market for data-driven M&A defines a perfect path and should not be optimized and modified based on traditional related-market definition methods.The relevant market definition should be re-examined and the conclusion of the theory of competitive harm should be emphasized.Combined with the theory of competitive harm,the relevant market definition path can be derived.The definition of big data-related market under this path should be divided into three steps based on the content,type,scope,scale and whether the data is replaceable and the data is easy to obtain.The object should be combined with the case and be pointed out the possible competitive harms associated with big data.If it is not possible to point out any possible competitive harm involved,it may be concluded that the matter under investigation does not violate the Anti-Monopoly Law and the lawsuit will be settled;if the possible competitive harm can be pointed out in advance,the corresponding candidate market is derived based on the possible competitive harm.In combination with the specific circumstances of the case,the analysis demonstrates that the pre-specified competitive harm can be established.If the competitive harm is not established,the corresponding candidate market does not need to be defined;if the competitive harm can be established in the case,the corresponding candidate market is initially established;combined with the alternative analysis theory,the transaction link and the trading market where the competitive harm is located are analyzed.By defining relevant markets furtherly,we can determine relevant commodity markets and geographic markets.Under the guidance of the theory of competitive harm,the definition of relevant market is an auxiliary means of judging the market power of the subject involved in a specific market.The definition of the relevant market can be diluted if the theory of harm is not established and there exists evidence to prove the harm.Data-driven M&A cases should define big data-related markets according to the competitive harm related to big data.This definition has certain subjectivity.To avoid that the deviation of the definition of big data-related market lead to the mistake of the review conclusion,we should also establish the re-evaluation mechanism of the anti-monopoly review so that it can facilitate the enforcement agencies to supervise whether the operators continue to be in compliance with law,and also provide a second opportunity to defense for the operators whose M&A applications have been rejected.Because China's existing centralized reporting standards for operators are too single and poorly operative,the factors of investigation of this reporting standard should be enriched to ensure that data-driven M&A cases with substantially competitive value can be included in the review.