On 14 September 2023, the PRC Supreme People's Court (“SPC”) issued the 2023 People's Courts' Typical Anti-Monopoly Cases and Anti-Unfair Competition Cases.
A total of five anti-monopoly cases were published by the SPC. Three are related to abuse of dominant position, including abusive behaviours such as unfairly high prices, exclusive dealing, imposing unreasonable trading conditions and refusal to deal, and two are related to monopoly agreements, including horizontal and vertical agreements. The undertakings concerned in these cases are involved in sectors such as pharmaceuticals, automotive, building materials, etc.
Under the PRC's competition law regime, an undertaking that engages in anti-competitive conduct is not only subject to severe administrative penalties, but may also face subsequent civil lawsuits for compensation from consumers or other undertakings affected by such conduct.
According to the Provisions on Several Issues of Intellectual Property Court of the SPC, the second instance of all civil disputes relating to anti-competitive conducts shall be heard by the Intellectual Property Court of the SPC. Therefore, these cases published by the SPC provide valuable guidance in understanding the SPC's judicial thinking and practice when hearing anti-trust civil lawsuits.
Below we have selected for discussion an SPC trial case on damage claims arising from a vertical monopoly agreement.
Background of the Case
In 2016, the Shanghai Municipal Price Bureau found out that a car manufacturer had violated competition law by restricting its dealers to a minimum price for reselling cars of multiple brands, and subsequently imposed fines on such car manufacturer.
In 2018, the plaintiff, an individual car owner, sued this car manufacturer and one of its dealers in Shanghai before the Shanghai Intellectual Property Court for entering into and implementing a vertical monopoly agreement, and claimed damages of RMB 10,000 and other reasonable costs of RMB 7,500.
On 28 February 2020, the Shanghai Intellectual Property Court rendered a first instance judgment rejecting all of the plaintiff's claims. The plaintiff appealed, and on 15 December 2022, the SPC rendered a final judgment, revoking the judgment of the first instance court and ruling that the car manufacturer should compensate the plaintiff's claimed damages and that the dealer should be liable for the part of the damages that the car manufacturer fails to compensate.
Analysis of Rulings of the SPC
In this case, the SPC fully recognised and relied on the administrative penalty decision of the Shanghai Municipal Price Bureau in proving anti-competitive conduct, which significantly reduced the plaintiff's burden of proof. This is in line with Article 114 of the Interpretation of the SPC on the Application of the PRC Civil Procedure Law (as amended in 2022), which states that the matters stated in the decisions of government agencies shall be presumed to be true in litigations unless there is sufficient evidence to the contrary. The same principle is also mentioned in the draft Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases on Monopoly promulgated by the SPC last year.
However, the court of first instance held that the defendants' rebuttal evidence showed that the car manufacturer did not strictly enforce the minimum price requirement on each and every sale of cars. In addition, the manufacturer did not punish the dealer for selling below the minimum price, but rather adopted a lenient attitude. Therefore, the court of first instance held that there was insufficient evidence to conclude that the car manufacturer and the dealer had implemented a monopoly agreement on resale price maintenance against the plaintiff.
In the second instance, the SPC held that the above finding of the first instance court was an error in the allocation of the burden of proof as well as an error in the findings of facts. In its view, the plaintiff had satisfied its prima facie burden of proving the existence of the alleged monopoly agreement. Although the two defendants submitted rebuttal evidence to prove that this dealer and other dealers did not fully implement the minimum price limit set by the car manufacturer during the relevant period, in the view of the SPC such evidence was not sufficient to rebut the facts found in the administrative penalty decision, nor to rebut the fact that the dealer may have strictly implemented the minimum resale price set by the car manufacturer in its sales to the plaintiff. Therefore, the defendants' monopoly agreement on resale prices is considered to be established.
This case shows that in disputes relating to anti-competitive conduct that has already been subject to fines, plaintiff only needs to provide the effective administrative penalty decision and initial evidence of the defendant's involvement in the alleged anti-competitive conduct to meet its burden of proof. It is very challenging and hardly possible for defendant to rebut the findings in the decision.
Another point worth noting from this case is that the dealer that was subject to the minimum price limit and was not fined under the administrative penalty decision is nevertheless ordered by the SPC to bear the so-called "supplementary responsibility " for the damages. It is not clear what "supplementary responsibility" stands for, and our understanding is that if the car manufacturer does not compensate or does not compensate fully, the dealer should make up the difference. This indicates that a party that has been subjected to an anticompetitive restriction under a vertical agreement and was not prosecuted by the antimonopoly enforcement authority for administrative liability may still be held liable for damages by a court together with the party that imposed the restriction.
Closing of an investigation by the antimonopoly enforcement authority is not the real end for the undertaking concerned. Civil litigations can also be initiated by the parties concerned. In recent years, there has been an increasing number of civil lawsuits for damages resulting from anti-competitive conduct, regardless of whether an administrative fine had been imposed. When planning an anti-trust compliance program, it is also essential for companies to incorporate the appropriate mechanism to assess and mitigate civil litigation risks.