| In recent years,many Internet platforms have frequently implemented the so-called platform "two-for-one" behavior in order to dominate the relevant market and exclude or limit the effective competition of other platforms.Although this kind of behavior helps the platform to improve the efficiency of operation to a certain extent and eliminate the phenomenon of free-riding of other platforms,there are also hazards such as excluding and restricting competition of others and damaging the order of market competition.At present,there are two legal regulation paths in practice:one is to apply the Anti-monopoly Law to identify the abuse of dominant market position;the other is to apply the AntiUnfair Competition Law to identify the unfair competition.Under the regulatory frame work of the Anti-monopoly Law,due to the special attributes of cross-network effect,"free" business model and dynamic cross-border competition in the new economy,the anti-monopoly regulation of such behavior faces many challenges in the stage of determining the dominant position of the platform.Theoretically,when "two-for-one" behavior exists in the form of "consensual",such behavior can also be identified as vertical non-price monopoly agreements,thus avoiding the difficulties of vague market definition and difficult identification of platform power.However,considering the lack of clarity of the vertical non-price monopoly agreement in China’s Anti-monopoly Law,and the fact that the form and nature of the "two-choice" behavior is more consistent with the limited trading behavior,we should look at the abuse of the market as a whole.Therefore,we should analyze the "two-choice" behavior more from the perspective of abuse of dominant market position and correctly apply the Anti-monopoly Law with the characteristics of the network platform.To achieve this goal,the following aspects need to be implemented:First,the definition of the relevant market should be optimized.Determine the number of relevant markets defined according to the cross-network effect of platforms,and add non-price analysis elements such as platform functions on the basis of traditional alternative analysis methods.Second,improve the identification criteria of market power.Add the consideration of multiple elements such as time,user data and the platform’s ability to control data to the traditional method of presumption based on market share.Thirdly,clarify the criteria for applying the defense of justifiability.Combined with the practice and relevant legal provisions,the defe nse of justification should have the necessity in addition to the justification.Fourth,to improve the "two-choice" behavior of prior regulatory measures.In order to avoid the inevitable lag of post-facto antitrust judicial proceedings,the principle of "inclusive and prudent" supervision should be adhered to in the stage of antitrust administrative enforcement.For "two-choice" behavior that is not sure whether it is illegal,timely communication with the operator rather than immediate rigid enforcement.In this way,we can strengthen the exante supervision and regulation of "two-choice" behavior and promote comprehensive supervision. |
