Our reporter, Wan Jing
In June 2016, after the release of the "Opinions of the State Council on Establishing Fair Competition and Censorship in the Construction of the Market System" (hereinafter referred to as Document No. 34), in 2017, all provinces and cities across the country began to establish rules and regulations, and fully implemented Document No. 34. 31 provinces have issued implementation plans or implementation measures.
The National Development and Reform Commission, the Ministry of Finance, the Ministry of Commerce, the State Administration for Industry and Commerce, and the Legislative Affairs Office of the State Council, together with relevant departments, studied and formulated the "Detailed Rules for the Implementation of Fair Competition Censorship (Interim) " (hereinafter referred to as the "Detailed Rules"), which were approved by the State Council and issued in October 2017. The industry unanimously commented that "another boot has landed" to allow the fair competition review to enter the substantive implementation stage.
19 provinces were included in the performance appraisal
"Legal Daily" reporters found that since the release of Article 34, all ministries and commissions of the State Council have established a fair competition review mechanism; 31 provinces have issued implementation plans to carry out the review work in an orderly manner. It is particularly noteworthy that 19 of these 31 provinces have proposed to establish and improve the government affairs and administrative commitment assessment system and improve the accountability mechanism for fair competition review.
Six provinces – Shaanxi, Jiangsu, Tianjin, Jiangxi, Hebei and Qinghai – called for stronger accountability and the establishment of a system of assessment, supervision and accountability for fair competition review work. Taking Jiangxi Province as an example, the Provincial Fair Competition Review Joint Conference Office and relevant industry authorities should strengthen the assessment and supervision of fair competition review work, and local governments and departments that fail to conduct fair competition review or violate fair competition review standards and introduce policies and measures, as well as fail to correct relevant policies and measures in a timely manner, must be seriously accountable.
In addition, more than 10 provinces (autonomous regions and municipalities) including Shanghai, Tibet, Inner Mongolia and Shandong have proposed to improve the evaluation mechanism and encourage the government to purchase services and entrust third parties to carry out evaluations. Evaluation reports should be open to the public for comments, and evaluation results should be open to the public.
The rules ensure that the review is left behind
At the end of October 2017, the "Detailed Rules" jointly issued by the National Development and Reform Commission, the Ministry of Finance, the Ministry of Commerce, the State Administration for Industry and Commerce, and the Legislative Affairs Office of the State Council were officially issued. Non-review and non-serious review in the practice of fair competition review are the primary issues to be solved by the "Detailed Rules".
To this end, the "Detailed Rules" mainly strengthen the procedural constraints on the fair competition review work in the following aspects: clarify the internal review mechanism, require the formation of written review conclusions, refine the rules and procedures for soliciting opinions, and establish a regular reporting system. More notably, the "Detailed Rules" further clarify the issue of supervision and reporting and accountability, and stipulate that any unit or individual can report to the policy-making authority or report to the superior authority or the anti-monopoly law enforcement agency if the review is not conducted or the review standards are violated.
Professor Shi Jianzhong, a member of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council and Vice President of China University of Political Science and Law, believes that it is far from enough to establish fair competition censorship, and the cage of the system must be further tightened and tightened. The Detailed Rules explain and refine the relevant provisions of fair competition censorship from the aspects of review mechanisms and procedures, review standards, exception provisions, social supervision, and accountability, ensuring that fair competition review becomes a necessary procedure before the introduction of policies and measures, ensuring that review leaves traces, avoiding self-censorship as a formality, and preventing perfunctory.
Investigate and punish restrictions on competition
In July 2017, the National Development and Reform Commission disclosed that the National Development and Reform Commission and the Sichuan Provincial Development and Reform Commission investigated and found that the Chengdu State-owned Assets Supervision and Administration Commission organized a special coordination meeting and issued meeting notes, requiring municipal state-owned enterprises and their wholly-owned and controlling subsidiaries (sub) companies to give priority to insurance services provided by local state-owned enterprises under the same conditions of price and service. Chengdu State-owned Assets Supervision and Administration Commission took the initiative to issue a document to abolish the above meeting notes.
Rather than establishing rules and regulations, the public is more concerned about practical actions. As fair competition censorship has gradually and solidly advanced across the country, in 2017, many local governments began to strictly review their respective policy documents in accordance with the spirit of Circular 34. During the year, many acts of restricting competition or abusing administrative power to interfere with market competition order have been corrected or are being corrected.
According to a person from the Price Supervision Bureau of the National Development and Reform Commission, there are currently more than 40 cases of abuse of administrative power to exclude and restrict competition that have been completed or are being handled in various places, and will be disclosed one after another in the near future.
On December 5, 2017, the National Development and Reform Commission, the Ministry of Finance, and the Ministry of Commerce jointly issued the "2017-2018 Work Plan for Cleaning Up Existing Policies to Exclude and Restrict Competition".
According to the plan, by May 2018, all departments of the State Council and local people’s governments at all levels and their subordinate departments will form a conclusion on the policies and measures to eliminate and restrict competition, and repeal or adjust them according to the procedures. Before July 2018, local people’s governments at all levels and their subordinate departments will conduct a comprehensive summary of the clean-up work, form a written report, and report it level by level. Before November 2018, the inter-ministerial joint conference on fair competition review will organize inspections of the clean-up work of all provinces (autonomous regions and municipalities) and departments, and correct those that are not in place.
Supervision network ride-hailing local policy
In 2017, the biggest challenge to fair competition censorship was the introduction of local policies on ride-hailing. Many people use local policies on ride-hailing as "test strips" to test whether fair competition reviews are real.
New regulations on ride-hailing in many places have set up obstacles to the relevant conditions of "people and cars", and "deliberately" shrinking the policy space given to the online car-hailing industry by the Ministry of Transport. In response, Beijing Tianyuan Law Firm recently reported to the relevant anti-monopoly law enforcement agencies that "the detailed rules of online car-hailing in some cities are suspected of violating fair competition censorship and are suspected of abusing administrative power to exclude and restrict competition." At present, the National Development and Reform Commission has started to investigate the situation of local online car-hailing fair competition reviews.
Under the supervision of the National Development and Reform Commission, in September 2017, Quanzhou, Fujian and Lanzhou, Gansu Province successively revised the previously formulated detailed rules for the implementation of online car-hailing. The adjustment direction includes weakening the personal and household registration restrictions on online car-hailing drivers, lowering the price and technical conditions requirements for online car-hailing vehicles, canceling access restrictions on online car-hailing vehicles and drivers, and canceling other unreasonable restrictions that violate the requirements of the market economy.
According to a relevant person from the Price Supervision Bureau of the National Development and Reform Commission, many local governments are not copying or forwarding documents in implementing the spirit of Document No. 34, but actually conducting censorship, which is why there are more than 40 cases mentioned above. This is also closely related to the efforts of the development and reform departments to initiate and organize local administrative departments to train and study Document No. 34 and the Detailed Rules. At present, some local governments, especially at the grass-roots municipal and county levels, need to speed up the implementation of fair competition censorship, establish relevant working mechanisms as soon as possible, and really move. In addition, local governments need to come up with practical solutions in specific work implementation, such as the problem of "stock clearance".
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