Article 15 Provided the alleged monopolistic behaviour has been investigated by the competition authorities but has not been found illegal, the People’s Court shall review the
I. Empirical analysis of antitrust action
1. EU
As preparatory work, the 2004 Ashurst Report and the 2007 Impact Study make up two important sources for the empirical study of the EU antitrust action for damages.473 Apart from these Reports, literatures in connection with the empirical analysis include: Barry Rodger’s studies on the private action in the UK (1970-2008) and Sebastian Peyer’s empirical research on private action in Germany (2005-2007).474 In addition, the empirical analysis of the European antitrust action can also be found in: Simon Vande Walle’s comparative work of the European and Japanese private enforcement in 2013.475
Before 2004, the situation was ‘total underdevelopment’ and ‘astonishing diversity’. There were only around 60 judged cases for damages, consisting of 12 on the EC competition law, 32 on national law and 6 on both. 476 Among those the damages were awarded, 8 final decisions are based on the EC competition law, 16 on the national law, and 4 on both.477 3 Member States had a special statutory basis for antitrust damages action. 478 The UK had the specialized courts for dealing with competition based damages action. Most Member States provided general rules for designation of competent courts.479
In the period from 2004 to September 2007, there were 96 antitrust actions for damages based on EC competition law in 10 of the 27 Member States.480 Among them, claims on vertical agreements were in the majority (61 of 96 cases), 13 related to horizontal agreements, 22 on the abuse of dominance.481 However, it is interesting that success rates on damages awarded due to cartels (46%) and abusive behaviours (55%) are far higher than those on vertical agreements (approximate null).482 Even in the case Courage, following the affirmation of the claimant’s right to sue by the Court of Justice, it was overruled by the English House of Lords.483 The number of stand-alone cases was relatively low. The ‘clusters’ of claims contributed a lot
473 See Denis Waelbroeck et al, Ashurst Report: Study on the conditions of claims for damages in case of infringement of EC competition rules, Brussels 2004; see Andrea Renda et al, Welfare impact and Potential Scenarios, Final Report, Brussels, Rome and Rotterdam, 2007
474 See Barry Rodger, ‘Competition Law Litigation in the UK Courts: A Study of All Cases to 2004-Part I’, 27 Eur.
COMPETITION L. Rev. 241-248 (2006); see Barry Rodger, Competition Law Litigation in the UK Courts: A Study of All Cases to 2004-Part II, 27 Eur. COMPETITION L. Rev. 279-292 (2006); see Barry Rodger, ‘Competition Law Litigation in the UK Courts: A Study of All Cases to 2004-Part III’, 27 Eur. COMPETITION L. Rev. 341-350 (2006);
see Barry Rodger, ‘Competition Law Litigation in the UK Courts: A study of all cases 2005–2008—Part I’, 2 Global COMPETITION LITIG. REV. 92-113(2009); see Barry Rodger, ‘Competition Law Litigation in the UK Courts: A study of all cases 2005–2008—Part II’, 2 Global COMPETITION LITIG. REV. 136-147(2009); see Sebastian Peyer,
‘Private Antitrust Litigation in Germany from 2005 to 2007: Empirical Evidence’, Journal of Competition Law &
Economics, 8(2), 331–359; see Sebastian Peyer, ‘Myths and Untold Stories – Private Antitrust Enforcement in Germany’, CCP Working Paper 10-12, (2010), 1-74
475 See Denis Waelbroeck et al, supra n 473, 1
476 See Denis Waelbroeck et al, supra n 473, 1
477 See Denis Waelbroeck et al, supra n 473, 1
478 See Denis Waelbroeck et al, supra n 473, 1
479 see Denis Waelbroeck et al, supra n 473, 1
480 Andrea Renda et al, supra n 473, 39
481 Renda et al, supra n 473, 40
482 Renda et al, supra n 473, 40
483 Inntrepreneur Pub Company (CPC) et al. v. Crehan (HL), [2006] UKHL 38; Renda et al, supra n 473, 40
in the total number of actions (96 cases), including Motor Vehicle vertical agreements, oil vertical agreements, vitamin cartel and Rc Auto cartel.484 The impact study concluded that during this period neither the successful damages actions nor the experiences of the Member States were common. 485
Table 2: Cases by types and years from 2004 to 2007
Year Art. 81 (cartel) Art. 81 (vertical) Art. 82
2004 0 17 3
2005 3 21 9
2006 3 18 6
2007 7 5 4
total 13 61 22
Damages awarded 46% 0% 55%
Rodger’s studies divided the development of private enforcement in the Union competition law and national competition law in the UK into two periods: from the 1970s to 2005 and from 2005 to 2008. In the first period from the 1970s to 2005, 90 cases in connection with competition law issues were examined.486 Among them, roughly 16 cases resulted in a full success and 7 carried partial successful consequence.487 It followed that there were 27 cases in the subsequent four years from 2005 to 2008, yielding 41 judgments and 18 of the 41 judgments with full success.488 The success rate shows a remarkable rise during the two periods.489 Among these 41 judgments, 29 were stand-alone actions, accounting to 70.7%, whereas 12 of them were follow-on action (29.3%).490 As regards the damages awarded from 2005 to 2008, 16 judgments pursued the damages or damages combined with other remedies to claimants and 8 succeeded.491 The injunctive relief or the injunction combined with the declaration of the rescind contract were pursued in only 6 cases and were awarded in 4 cases.492
Peyer studied the 368 cases (conservative assessment) filed in Germany from 2005 to 2007.493 Among them, 180 cases reached their final decisions in the first instance, 188 in the second instance including 24 before the Federal Court of Justice (Bundesgerichtshof, BGH).494 The success rate in the 180 cases that ended with the first instance equates to 32.8%.495 That in the cases concluded in the second instance (164 cases) is 32.3%, which shows no explicit difference to the numbers of the first instance.496 The success rate before BGH is 45.8% (24 cases).497 Follow-on actions only amount to 2.2% of the total 368 cases (4 cases), which is relatively low under the broad binding effect of the decision made by public authorities according to Section 33(4) of the German ARC.498 212 actions (57.6%) were brought by customers of the offenders;
65 by competitors (17.7%); 12 by dealers or suppliers; 1 was filed by indirect purchasers; 1 was by final customers.499 40 cases of the total number of cases claimed for damages; 84 for voidness; 51 for injunction; 50 for interim relief; 38 for conclusion of contract; 16 for
484 Renda et al, supra n 473, 40
485 Renda et al, supra n 473, 42
486 See Barry Rodger, supra n 474, 244
487 See Roger, supra n 474, 244-248
488 See Barry Rodger, supra n 474, 96
489 See Roger, supra n 474, 96
490 See Roger, supra n 474, 99
491 See Roger, supra n 474, 106
492 See Roger, supra n 474, 106
493 See Sebastian Peyer, supra n 474, 338; see Sebastian Peyer, supra n 474, 27
494 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 338
495 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 353
496 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 353
497 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 353
498 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 342
499 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 345
continuation of contract; 29 for unjust enrichment.500 The case number that claimants won or partly won in damages actions accounts for 17.5%, whereas that of injunctive relief is higher (47.1%).501 66 of the total 368 cases were brought relying on EU law (49 under Article 101 and 17 under Article 102); 283 were filed under ARC, including 71 related to the restrictive agreement and 212 related to dominance and other unilateral conducts.502 The average duration of the litigation was 17.01 months.503
2. China
In China, the formal numbers and statistics data from the court systems in private action of the AML is scant. The data on the numbers of cases accepted and ending in court for the whole of China (in Table 3) can only be found in annual Report on Competition Law and Policy of China and the information from the Antitrust Civil Litigation Forum (
中国反垄断民事诉讼论坛
).504 The Report was published by the Professional Committee on Competition Policy and Law (PCCPL) of China Society for World Trade Organization Studies (CWTO) which is an Organization of the Chinese Ministry of Commerce. The Forum was supported by the Intellectual Property Tribunal of the Supreme People’s Court. Therefore, data from the Report and the Forum can basically be deemed reliable and can be used for the further discussion. In addition, the judgments of most cases can be found on the website Judicial Opinions of China (http://www.court.gov.cn/zgcpwsw/); they are formally released by Chinese courts. It should be noted that the data in Table 3 and Figure 2 may neither include the cases that were dropped or reached the settlements nor the cases that referred to antitrust issues but were brought through another cause of action. Hence, the real number of the private action may probably exceed the number quoted below. According to the data below, it can be found that there was a large rise of cases in 2012 and 2013, when the Judicial Interpretation came into effect in June 2012. The situation as regards private enforcement before or after 2012 changed significantly. For pre-2012 private enforcement is summarized as: firstly, disputes in the cases were relatively simple.505 It was not difficult for the court to arrive at a decision on it. 506 For example, in case Huzhou Yiting (2009), the major dispute was not the determination of the dominant position (which had already been agreed between the claimant and the defendant), but focused on whether the conduct was the abusive conduct prohibited by Article 17 of AML, which is relatively easier to determine. Secondly, the courts applied provisions of the Tort Law, the Contract Law or the Law against Unfair Competition to deal with cases pre-2012 due to the lack of detailed Judicial Interpretation on the antitrust action.507 A large number of cases were solved through the judicial mediation conducted by courts, not the judgment.508 Thirdly, in the absence of the Judicial Interpretation a large number of claimants failed to prove their claims.509
500 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 349
501 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 354
502 See Peyer, Journal of Competition Law & Economics, 8(2), supra n 474, 357
503 See Peyer, CCP Working Paper 10-12, (2010), supra n 474, 65
504 Zhaoqi Cen etl (edt.), Report on Competition Law and Policy of China (2012), (中国竞争法律与政策研究报 告，zhongguo jingzheng falv yu zhengce yanjiu baogao), Professional Committee on Competition Policy and Law (PCCPL) of China Society for World Trade Organization Studies (CWTO), Law Press•China, 2013, 111-112; the Antitrust Civil Litigation Forum was co-held by Competition Law Center of University of International Business and Economics and other organizations, and supported by Intellectual Property Tribunal of Supreme People’s Court.
505 Zhaoqi Cen etl (edt.), supra n 504, 109-110
506 Zhaoqi Cen etl (edt.), supra n 504, 109-110
507 Zhaoqi Cen etl (edt.), supra n 504, 109-110
508 Zhaoqi Cen etl (edt.), supra n 504, 109-110
509 Zhaoqi Cen etl (edt.), Report on Competition Law and Policy of China (2014), (中国竞争法律与政策研究报 告，zhongguo jingzheng falv yu zhengce yanjiu baogao), Professional Committee on Competition Policy and Law (PCCPL) of China Society for World Trade Organization Studies (CWTO) (Law Press•China, 2014), 110
The Judicial Interpretation on AML in 2012 virtually encouraged the filing of private action which can be seen in the Figure below: the number of cases brought brought in 2012 and 2013 is larger than the one from the first four years (from 2008-2011). Some significant judgments emerged during this period, such as Qihoo v. Tencent (by the Supreme Court), Rainbow v.
Johnson & Johnson (Shanghai High Court). The court began to assess and determine some complicated issues in the judgment, such as ‘the dominant position’, ‘the effect in eliminating or restricting the competition’. The litigants acquired the basic knowledge and experience regarding the burden of proof, which helped with submitting more evidence as regards their allegations.510 There is no formal number of the successful claims. But according to the judgments that can be found on the website Judicial Opinions of China, the success rate is very low.
It should be noted that neither incomplete data as to private enforcement in China nor the six years of history (2008.8-2015) can provide a sufficient basis for further inference or conclusion.
As more data and information on the settled cases become available, a more accurate analysis can be made. However, some preliminary inference can be summarized:
A large proportion of actions based on Article 17 of AML (abuse of dominant position) were filed by competitors, customers and other downstream purchasers with direct connections to the offenders or the disputes filed stand in direct connection with the illicit agreement or practice. The cases filed by indirect purchasers can still not be found for the six years of enforcement of AML in the period from 2008 to 2014. Basically, in most cases, the courts did not explicitly distinguish between ‘the claim filed due to loss of monopolistic conducts’ and
‘the claim filed due to the dispute because of the content of the agreement, the articles of an industry association’, which are prescribed in Article 1 of the Judicial Interpretation on AML.511 The only exception is case Wu Xiaoqin v. Shanxi Broadcast & TV Network Intermediary Group Co., Ltd; the court explicitly indicated in its judgment that the claim was based on the dispute as to whether the content of the agreement constituted a breach of AML.512 A dramatic step forward for litigants and courts is delineation of the relevant market during the six years’ development. From the early cases in 2008 and 2009, such as Renren v. Baidu513, it was evident that the biggest dispute in the abuse of dominant position cases was the delineation of the relevant market. Legal uncertainty occurred due to lack of analysis methods and the necessary requirements as regards the evidence. Hence, the decisions of the courts also generated a lot of controversies. It was also the biggest obstacle for the claimants to show sufficient evidence and satisfy the proof requirement held by the courts. A large number of cases were dismissed by the court due to claimants’ failure as regards satisfying the proof requirement. A dramatic change came after the Guide on the Relevant Market (2009), the Judicial Interpretation on AML (2012) and the previous experience gathered in the dozens of cases during the first two or three years. A careful and relatively completed analysis of the delineation of the relevant market can be found in the case Qihoo v. Tencent decided by the Guangdong High Court and the Supreme Court and in the case Rainbow v. Johnson & Johnson decided by the Shanghai High Court.514
510 Zhaoqi Cen etl (edt.), supra n 509, 111-112
511 Zhaoqi Cen etl (edt.), supra n 509, 98-99
512 Xiaoqin WU v. Shaanxi Radio [2012], Higher People Court of Shaanxi, Shaanxi High People’s Court [2013] No.
306 ([2013]陕民三终字第00038号), 12 September 2013, Chinese Competition Decision Summaries, Case date:
12 September 2013, available at
http://www.kluwercompetitionlaw.com/CommonUI/search.aspx?q=Wu%20Xiaoqin
513 Renren v. Baidu [2010], Higher People’s Court of Beijing, Beijing Final Commerce [2010] No. 489 ([2010] 高 民终字第489号), 9 July 2010, Chinese Competition Decision Summaries, Case date: 9 July 2010, available at:
http://www.kluwercompetitionlaw.com/CommonUI/search.aspx?q=renren
514 Qihoo v. Tencent [2013], Supreme People’s Court of the People’s Republic of China, Supreme People’s Court [2013] No. 4 ((2013) 民三终字第4号), supra n 143; Rainbow v. Johnson & Johnson, Higher People’s Court of Shanghai, Shanghai Final Commerce [2012] No. 63 ([2012] 沪高民三（知）终字第63号), supra n 102
The antitrust law is new and constitute a sophisticated task for both public authorities and private parties. When AML first came into effect, an antitrust action was brought before the court, which is even earlier than public enforcement. The situation is a little different from that in the EU, where public enforcement has been exercised for many years by the Commission and NCAs and substantial experience as to applying the antitrust law has been gathered. It can somewhat explain why there were nearly 100% of unsuccessful claims for the claimants existed during the first two or three years.
However, despite the lack of experience and definite provisions, the achievement for private enforcement in China is not worse than for public enforcement, especially considering the number of cases filed and taken to completion. It shows the shortcomings of public enforcement on a limited financial and man-powered resource faced by the competition authorities. Private enforcement indeed complemented the shortcomings of public enforcement. But the question whether private action was strategically abused by competitors and other parties in the market as an anti-competitive tool cannot be arbitrarily answered with the settled cases and limited information.
Table 3: the case numbers during 2008 to 2014
Year Accepted (the number of new cases) Ended (the number of cases, including the cases from last year)
2008.8-2009.12 10 6
2010.1-2010.12 33 23
2011.1-2011.12 18 24
2012.1-2012.12 46 49
2013.1-2013.12 71 69
2014.1-2014.5 10 1
The total number 187 172
Figure 2: the case numbers during 2008 to 2014
0 10 20 30 40 50 60 70 80
cases accepted cases ended