管制行业反垄断执法权配置分析——以管制度为视角

管制行业在不同程度上存在着反垄断执法问题,其执法权配置有多种模式可供选择,但从管制度的角度看,这一执法权配置应是从行业管制机构向反垄断专门执法机关逐步移转的过程,这也是大多数国家或地区立法与实践的发展趋向,因此,我国相关立法也应作相应完善.     

The economic analysis of antitrust consents

Henry G. Manne, our friend, Mentor, and colleague, was a pioneer in the economic analysis of law. By consistently challenging the notion that existing institutions were well understood, he expanded the domain of economics to new and fertile ground. In that spirit, our goal in this article is to bring out of the shadows an institution that has thus far evaded the light of economic analysis: antitrust consents. In our view, competition authorities around the world should be asking themselves what ratio of litigation to settlement is optimal for their agency. Over the last 35 years, the United States Federal Trade Commission and the Antitrust Division of the Department of Justice have shifted dramatically toward greater reliance upon consent decrees than upon litigation to resolve antitrust disputes. As an aid to national competition agencies considering the desirability of adopting a similar approach, we focus upon the importance of economic analysis in evaluating movement along the continuum from a law enforcement model to a regulatory model of agency behavior. We draw upon the U.S. experience to substantiate our claim that the costs associated with a shift toward the regulatory model, including the potential distortion in the development of substantive antitrust doctrine, may be under-appreciated and discernable only in the long run. We acknowledge that consent decrees can and should be an important tool in an antitrust agency’s toolkit for resolving antitrust disputes. We contend, however, that a full economic analysis of reliance primarily upon consent decrees is necessary to inform each competition agency’s strategic decision about the optimal mix of law enforcement and regulatory techniques.     

Special report on antitrust. Criminal antitrust enforcement--when, who, and why?

Government civil antitrust enforcement and private antitrust litigation are not always easy to avoid, because even innocent actions can be alleged to have been improperly motivated or to adversely affect competition. On the other hand, criminal antitrust violations can be readily avoided by following a set of basic, simple, and easy to remember rules: 1. Providers should not agree with competing or potentially competing providers on any terms of price, quantity, or quality of service; 2. Providers should not agree with competing or potentially competing providers as to which patients (or payors) will be served, what kinds of services will be offered, or where to locate offices or facilities; and 3. Providers should not agree with competing or potentially competing providers to refuse to offer services to payors or other alternative delivery systems. There are circumstances in which exceptions to these general rules are appropriate, such as when an agreement among providers is necessary in order to participate in a legitimate alternative delivery system, preferred provider organization, or individual practice association. However, these exceptions are narrow and technical. The best advice is the following warning to providers by Charles F. Rule, former U.S. Assistant Attorney General for antitrust: "You should never act as if an exception applies until after you have consulted an experienced antitrust lawyer or until you have obtained adequate assurance that competent counsel has structured the system to eliminate antitrust problems."     

Why don't courts treat hospitals like tanks for liquefied gases? Some reflections on health care antitrust enforcement

In this article, I use the Federal Trade Commission and the Department of Justice 2004 report Improving Health Care: A Dose of Competition as an occasion to comment on two specific issues that have arisen in health care antitrust: the recent string of losses by the enforcement agencies in hospital merger cases and an antitrust exemption for physicians to bargain collectively with health insurers. One of the more salient facts about health care antitrust enforcement is the notable recent lack of success of the enforcement agencies in hospital merger cases. This may be due to judges and juries holding views of hospital markets as being different from markets for other goods and services. My conclusion is that hospitals are an industry with unique attributes, but nothing about the specifics of the health care industry suggests that the unregulated use of market power in this industry is socially beneficial. As a consequence, the antitrust laws should be enforced here as in any other industry. Countervailing power is an issue that has come to the fore in health care antitrust. Physicians have explicitly asked for legislative exemption from the antitrust laws in order to bargain collectively with insurance companies, as a means of counteracting insurers' monopsony power. It is not clear that health insurers possess significant monopsony power. Even if they do, bestowing monopoly power on physicians will not necessarily improve matters. Active antitrust enforcement in insurance markets is the correct response, not blanket exemptions for providers.     

Physician agreements to control medical prepayment plans: Federal Trade Commission. Adoption and publication of enforcement policy with respect to physician agreements to control medical prepayment plans

The Federal Trade Commission has adopted, and is publishing with this notice, a statement of enforcement policy with respect to physician agreements to control medical prepayment plans. The statement sets forth the general approach the Commission intends to use in its case-by-case enforcement program for evaluating physician agreements to form, operate, or control such plans and for evaluating the practices of plans that are controlled by a group of physicians.     

Redressing the imbalanced political market for health policy: a role for the state attorney general?

In current discussions of "procompetitive" approaches to health policy, the enforcement of antitrust laws in health care markets is a strategy that has attracted increasing attention: the filing of consumer-oriented health suits provides a means to "redress" the typically imbalanced "political market" in health policy. This study examines an important aspect of the antitrust enforcement process, the decision by a state attorney general to undertake an aggressive antitrust enforcement program in the health area. Three variables were found to explain this decision: the political needs of a "politician-supplier," the organizational resources of a strategic institutional position, and the availability of a relatively favorable policy arena. An assessment of the future role of state attorneys general in this area suggests that their health antitrust initiatives will increase, but that various political and resource constraints are likely to inhibit their aggressiveness in pursuing these actions.     

Federal Trade Commission drops challenge to California hospital acquisition

The significance of patient outmigration patterns, third-party payor reaction, and post-merger cost savings have been regularly argued by defense counsel and hospitals as important consideration in the antitrust evaluation of hospital mergers. The reliance placed by the Commission on these factors in its Ukiah decision is a welcome confirmation that the antitrust agencies are increasingly sensitive to these aspects of hospital mergers, reflecting a more sophisticated understanding of the health care market than was suggested by the staff's more mechanical evaluative approach. Hospitals and their counsel should therefore prepare for and document these factors if they anticipate antitrust agency scrutiny of a proposed acquisition or merger.     

Antitrust Law and Distributive Politics in the American States

State enforcement by state attorneys general (AGs) has become a major component of American antitrust law. Much has been written about state antitrust enforcement, but existing accounts of AG incentives and behavior are incomplete. As elected officials in forty‐three states, AGs must represent their constituents and, therefore, will be drawn to cases that maximize the level of settlement reward—cases with large, wealthy defendants. I hypothesize and find that state AGs represent their constituents along ideological lines, but this relationship is conditioned by case characteristics that involve the potential settlement reward. Moreover, incentives to participate are likely to be higher when there are clear violations of the law, as in price‐fixing cases, rather than in merger cases, where no wrongdoing has necessarily been established. The study adds to our understanding of antitrust law but also has implications for how distributive politics shapes political responsiveness to the electorate.     

Ready or not? A systematic review of case studies using data-driven approaches to detect real-world antitrust violations

Cartels and other anti-competitive behaviour by companies have a tremendously negative impact on the economy and, ultimately, on consumers. To detect such anti-competitive behaviour, competition authorities need reliable tools. Recently, new data-driven approaches have started to emerge in the area of computational antitrust that can complement already established tools, such as leniency programs. Our systematic review of case studies shows how data-driven approaches can be used to detect real-world antitrust violations. Relying on statistical analysis or machine learning, ever more sophisticated methods have been developed and applied to real-world scenarios to identify whether an antitrust infringement has taken place. Our review suggests that the approaches already applied in case studies have become more complex and more sophisticated over time, and may also be transferrable to further types of cases. While computational tools may not yet be ready to take over antitrust enforcement, they are ready to be employed more fully.     

反垄断执法和解中的利益平衡

允许执法者与企业就垄断行为达成和解,是现代反垄断执法的重要特征之一。执法和解反映了企业自治在现代反垄断法上地位的提升,虽能在一定程度上缓和传统执法方式的不足,大大节约执法资源从而促进效率,却易造成公共利益的损失,也可能对相关主体的利益照顾不足;因此,在以和解程序处置垄断案件的同时,必须防止对公共利益的“私相授受”,并对相关主体的利益维护提供制度保障,以实现主体间的利益平衡。     

Most-favored-nation clauses in commercial contracts: legal and economic analysis and proposal for a guideline

The prevalent use of “most favored nation” (MFN) clauses in commercial agreements has garnered significant attention in the economics and legal literature and by practitioners and enforcement agencies. From an antitrust standpoint, there is a strong consensus that while MFN provisions can lead to procompetitive outcomes or at least play a competitively neutral role, they may also result in competitive harm and a loss of consumer welfare. Therefore, US and EU enforcement agencies and courts have held that MFNs should be reviewed on a case-by-case basis, considering the specific characteristics of both the contractual provision and the industry. While a case-by-case approach is valid, it is not ideal from a variety of standpoints: that of the competition authorities seeking to make best use of their limited resources and that of practitioners seeking to advise their clients. Accordingly, published guidelines on the use of MFNs, containing presumptions and safe harbors, would be both efficient and useful. The paper argues that it would increase the efficiency and accuracy of antitrust enforcement if one of the leading competition authorities issued MFN guidelines. The paper suggests a set of presumptions and safe harbors that should be included in any such guidelines.     

Empirical assessment of the role of economic analysis in the Russian antitrust: Why is economic analysis used?

Economic analysis is an important tool for the modern antitrust. This article provides an empirical study of its role in the Russian antitrust law enforcement practice in order to answer the following question: Has the understanding of the usefulness and importance of economic analysis in the Russian antitrust been achieved, or has economic analysis been applied formally? The study is based on the sample of official records on published decisions by the Supreme Court of Arbitration of the Russian Federation, created specifically for this research.     

Stand-alone private antitrust damages: (how) should competition authorities react?

The European Commission has recently set up a framework that facilitates the access to the courts by victims of antitrust injury, even in the absence of a ruling by a competition authority (so-called stand-alone private damages, or SPD, actions). Here, I study a game where both public and private antitrust enforcement play a role. Plaintiffs face information acquisition costs (evidence-gathering) if they want to bring an SPD action, but they do not internalise the opportunity cost of the courts?? resources. First, I show that any gain in deterrence has to be traded off against costly litigation and enforcement costs, and that these tradeoffs are heterogeneous across market sizes. Second, taking the competition authority??s actions as exogenous, SPDs can improve welfare only if the competition authority is sufficiently effective: private damages are a complement to (good) public enforcement, not a substitute. Third, a resource-constrained competition authority, upon the introduction of SPDs, should investigate a larger proportion of industries (even at the cost of a higher error rate). That is, whilst a ??hands-off?? approach might have been warranted absent SPDs, this is no longer true once stand-alone actions are introduced.     

Applying game theory to the protection of public funds: Some introductory notes

Regulatory agencies responsible for preventing misuse of public funds do not all operate in the same fashion. Some carefully weigh the costs and benefits associated with various enforcement policies, but others do not. We use game theory to suggest that (1) regulatory agencies actually have a range of enforcement options at their disposal and (2) these enforcement options can have quite different cost-benefit ratios, depending on the resources of the enforcement agency, the nature of its connection to principals, and the strategies adopted by opportunistic actors. We conclude that enforcement organizations must be flexible in order to be effective.     

论中国反垄断执法机构的设置

以维护自由公平竞争秩序为己任的反垄断法是现代市场经济的基本法律之一,而其功能的有效发挥离不开一个权威、独立的执法机构。反垄断执法机构的科学设置及其职责的合理确定是中国反垄断法制建设中的重要一环,也是行政管理学和行政法学中的一个重要问题。本文首先分析国外反垄断执法机关的设置及其职能,作为我国反垄断执法机关的设计参考。在确定中国反垄断执法机构的设置时要考虑到反垄断法本身的特点、现有相关机构的设置情况以及外国经验的比较借鉴等因素,通过中西方政府职能的发展比较,对我国反垄断执行机构的地位作出合理的定位。最后,我国反垄断执法机关的设置,要遵循权威独立、依法设置、精干效能等原则。据此,不宜在现有机构中指定反垄断执法机构,而应该单独创设专门的执法机构,其可以称为"国家反垄断委员会"或"国家公平交易委员会",并只在中央和省两级设立。这是由于反垄断法更注重维护宏观经济秩序、防止市场竞争不足从而具有政策性、灵活性和行政主导性的特点决定的。这样的机构应拥有调查检查权、审核批准权、行政处罚权、行政强制措施权和行政裁决权,并应拥有对地方各级政府及其部门和国务院各部门的限制竞争行为(行政垄断行为)直接进行处理的权力。     

我国反垄断行政诉讼的困境及因应——基于165份判决书的实证分析

行政诉讼在我国反垄断执法体系中居于重要地位。通过165份司法判决文书的实证分析,表明我国反垄断行政诉讼虽有发展,但总体呈现发展起点低、案件总量低、执法机构被诉比例低、原告胜诉率低等"四低"现象,这与反垄断行政诉讼的原告资格认定困难与合法性审查范围偏窄等内因不无关系。反垄断立法条文模糊、执法专业性强等特点易使反垄断执法存在不确定性,要消除这种不确定性,除了实体规范的细化保障外,程序保障亦不容忽视。所以说,为反垄断行政诉讼确立特殊的程序规则不但具有理论必要性,也存在现实紧迫性。申言之,在反垄断行政诉讼中应当尽快确立以程序参与为基础的利害关系认定制度,建立司法审查对程序性执法细则制定的督促机制,并适度加强法院实质审查的力度。     

Toward a definitive antitrust standard for nonprofit hospital mergers

Despite decades of federal and state regulatory efforts to encourage more efficient utilization of hospital resources, recent federal antitrust enforcement actions assert that nonprofit hospital mergers are detrimental to consumers. This policy, however, is derived from misguided attempts to apply the economic assumptions of for-profit industries to the nonprofit hospital sector and to extend statutes enacted to restrain national economic concentration to local nonprofit enterprises. This paper concludes that a rational antitrust enforcement policy that recognizes the unique characteristics of hospital markets can be described within the confines of existing antitrust statutes.     

Can Common Business Practices Ever Be Anticompetitive? Redefining Monopolization

For most of its modern history, antitrust law distinguished between normal competition and monopolization by looking for merit, legitimate business justifications, or efficiencies in the challenged business conduct. These proxies were seen as appropriate because they served antitrust law's welfare objectives well. However, the universal adoption of these proxies has overshadowed significant shortcomings, chief among them being that firms do not think in terms of legitimate business justifications or efficiencies, but rather in terms of long-term sustainability and appropriation of value. As a result, antitrust law becomes detached from the very subjects it purports to regulate. Against the backdrop of the recent resurgence of enforcement activity, particularly involving tech giants, this article attempts a conceptualization of monopolization that does not revolve around merit in any form or function. Instead it introduces the proxy of commonness of business practices to determine their legality. This helps highlight the importance of considering “how things are done” in the relevant market, and helps reground antitrust law in business realities, which can enhance the heuristic mechanism of distinguishing between normal and anticompetitive practices. To prove this point the article develops an error test framework, through which it compares current tests with the proposed test in terms of their error footprint and concludes that the integration of the commonness parameter delivers better results. Ultimately, the inquiry undertaken herein is not only about constructing a conception of normal competition different from the only standard we currently have, that is, variants of merit, but also about shifting the conversation from how to fine-tune existing standards to how to capture a more complete conception of competition.     

平台经济领域的反垄断法实施 以经济效率目标为出发点

在平台经济领域,欧盟和美国反垄断法实施力度有很大差异,中国也明显呈现出两个阶段。这种差异需要解释,而经济效率目标构成了理解的出发点。通过福利标准,经济效率目标建立了统一、确定的分析框架。但这一分析框架也受到诸多因素的约束,并面临平台经济的挑战。《反垄断法》虽然明确了经济效率目标,但没有清晰的福利标准。当前对平台企业的高强度执法,更多是追求非经济效率目标的结果。作为多目标法律,非经济效率目标使得《反垄断法》更具现实回应性。不过,要实现更好的实施效果,仍需要完善的反垄断法制度,并在个案中进行更充分地说理。     

平台扼杀式并购的反垄断法规制

全球大型数字平台通过"复制、收购与扼杀"的策略扼杀并购了大量初创企业,引发了创新赛道垄断的顾虑。初创企业并购通常不会引起显著的市场结构变化,但随着时间推移,平台"切香肠式"的扼杀式并购,在扼杀潜在竞争对手、强化自身市场支配地位的同时,更会扭曲长期创新供给,致使未来市场可竞争性丧失。而并购效率改进收益的消亡、创业者奖励作用的证伪与动态竞争约束工具的全面失灵,进一步要求反垄断执法机构应摒弃目前普遍不作为的监管做法,及时识别与规制平台扼杀式并购。对此,有必要引入内部文档调查、并购价格组成分析等并购动机过滤机制,识别出那些出于消除未来竞争威胁或扼杀潜在迭代式创新目的的初创企业并购;同时,通过引入补充性的申报门槛、设定更具针对性的审查补救措施与授权必要的事后调查,将能有效地遏制平台资本的无序扩张,为初创企业创造一个不受主导平台扼杀式并购威胁的现代化营商环境。