Hu

In view of the increasingly close relationship between trade policy and competition policy, and the increasing number of restrictive competition behaviors in the field of international trade, the WTO made a resolution at the Second Ministerial Conference in Singapore 1996 to "set up a working group to study the issues raised by members on the interaction between trade and competition policies, including anti-competitive behaviors, so as to determine areas worthy of further consideration within the framework of the WTO". Therefore, the WTO has established a working group on the interaction between trade and competition policy. In recent years, under the organization of this working group, member countries have discussed how to establish competition rules under the WTO system.

China joined the WTO at the Fourth Ministerial Conference in Doha in 2006. At the same time, the Ministerial Declaration adopted by the Fourth Ministerial Conference of WTO confirmed the need to establish a multilateral framework to strengthen the contribution of competition policy to international trade and development, and agreed that the Working Group on Interaction between Trade and Competition Policy will further clarify the following aspects between now and the Fifth Ministerial Conference of WTO: core principles, including transparency, non-discrimination and procedural fairness, and hard cartels; Voluntary cooperation mode; Support the gradual strengthening of the competition mechanism in developing countries through capacity building; Full consideration should be given to the needs of participants from developing countries and least developed countries, and appropriate flexibility should be given in addressing these needs.

In addition, according to the deployment of the Ministerial Declaration of the Fourth Ministerial Conference, after the Fifth Ministerial Conference of WTO, the competition policy negotiations will be further conducted on the basis of the clear consensus decision of the negotiation mode meeting, and the negotiations should be concluded no later than 2005 1. The Fifth Ministerial Conference of the WTO will assess the progress made in the negotiations, provide any necessary political guidance and make necessary decisions. When the results of the negotiations in all fields are announced, a special meeting of the ministerial conference will be held to decide on the acceptance and implementation of these results.

Competition policy is a new field involved in WTO. For a long time, people's understanding of WTO is limited to the places where countries can eliminate tariff and non-tariff trade barriers and negotiate market access, but there is no systematic understanding and research on the position and role of WTO system in the competition legal system.

According to the basic principles of competition law, prohibition of abuse of market power, prohibition of agreements restricting competition (especially cartels) and review of enterprise merger are the three pillars of competition law. Among them, the first two systems have begun to take shape in the existing WTO system. The starting point of this paper is to try to analyze the WTO system from a new perspective of competition law and systematically analyze the existing preliminary competition rules of WTO.

Firstly, the development and evolution of competition rules in WTO agreements.

(A) the stage before the establishment of the WTO

Essentially, the GATT—WTO system is a multilateral trade negotiation place based on the concept of mercantilism, which is market-oriented and promotes global trade through mutually beneficial trade concessions. [1] Whether competition rules should be included in the WTO has long been controversial. Supporters believe that "only trade policy without competition policy, the policy system is incomplete, and its defects, loopholes and blind spots will surely make a single trade policy not far away." [2] Opponents believe that "when countries tend to open their markets to each other more, the living space of restrictive business practices in domestic and international markets will be reduced. Therefore, the WTO should strive to play its traditional role and continue to complete the agenda set by the government aimed at reducing and eliminating trade barriers in goods and services. " [3] Due to the existence of the above two tit-for-tat debates, the process of bringing competition rules into the WTO system has experienced twists and turns.

In fact, as early as March 1948, at the Havana meeting to discuss the establishment of ITO (International Trade Organization), the 23 founding signatories of GATT, the predecessor of WTO, reached an agreement to control the harm of restrictive business practices through transparency, consultation and mediation. Article 46 of Chapter V of the Havana Charter adopted at the meeting pointed out that "Contracting States must take appropriate measures and cooperate with the Organization to control business practices that restrict competition in international trade, such as market segmentation or strengthening monopoly power, regardless of whether these behaviors are carried out by private enterprises or state-owned enterprises". [4] However, when the US government submitted the treaty establishing ITO to its Congress for approval, it was opposed by Congress, which led to the failure to establish ITO. Prior to this, 23 founding members of the International Trade Organization began negotiations on tariff concessions in 1947 to organize the International Trade Organization. The efforts of various countries to organize ITO were completely in vain, and the US government's participation in tariff concession negotiations has been authorized by Congress. Therefore, all countries, including the United States, finally agreed to add the results of tariff negotiations to some provisions on trade rules in the original Ito Charter, which became the well-known General Agreement on Tariffs and Trade (GATT). In this way, the original provisions on restrictive business practices in the Havana Charter were abandoned. However, there are some vague rules in GATT that can be used to restrict competitive behavior.

Since then, in the first seven rounds of multilateral negotiations organized by the contracting parties of GATT, the rules on restricting competitive behavior have not been put on the negotiation agenda, or although they have been put on the negotiation agenda, no agreement has been reached.

(B) after the establishment of the WTO stage

In the eighth round of Uruguay Round negotiations concluded in 1994, the parties not only reached an agreement to establish the World Trade Organization, but also involved in restricting competition in the General Agreement on Trade in Services, the Agreement on Trade-related Intellectual Property Rights, the Agreement on Trade-related Investment Measures, the Agreement on Technical Barriers to Trade and the Agreement on Safeguards. Among them, the General Agreement on Trade in Services and the subsequent Subsidiary Agreement on Finance and Telecommunications clearly contain anti-monopoly competition rules in specific industrial fields; However, the Agreement on Trade-related Investment Measures requires that when considering the Agreement, it is necessary to consider whether to supplement the provisions on investment policy and competition policy.

After the establishment of the WTO, 1996 Article 20 of the Declaration adopted by the Second Ministerial Conference in Singapore called for "the establishment of a working group to study the issues raised by members on the interaction between trade and competition policies, including anti-competitive behaviors, so as to identify areas worthy of further consideration within the framework of the WTO". Therefore, the WTO Working Group on the Interaction between Trade and Competition Policy was established and started its work. After years of efforts, the Fourth Ministerial Conference in Doha in 2000 1 decided to hold the first multilateral trade negotiations since the establishment of the WTO from 2002 1 to 20051,in which the relationship between trade and competition policy is the topic of a new round of multilateral negotiations. If the new round of negotiations is successful, it will be formally incorporated into the WTO system.

Analysis of Competition Rules under WTO System (Ⅱ)

Second, WTO rules on abuse of market power.

(1) Provisions prohibiting enterprises engaged in state monopoly industries from abusing market power.

There are two main ways to produce monopoly: first, the legislature or the government authorizes enterprises to monopolize; Second, the monopoly formed by enterprises due to industry characteristics or through their own operating advantages. The fact that enterprises have a monopoly position is not opposed by the competition law; Only when enterprises abuse their monopoly position can competition law regulate them.

In foreign trade, the government authorizes enterprises to monopolize a certain field, which is called "state-owned trade". State monopoly trade refers to "international trade that should be operated by private companies. For some agricultural products, tobacco and oil that are easy to cause market competition disorder, the state undertakes it, and the government designates an enterprise to monopolize or buy exclusively according to law, excluding intra-industry competition and implementing monopoly". [5] Before China joined the WTO and promised to liberalize the right to operate foreign trade, China's foreign trade system was a state monopoly trade system.

Just like the attitude of the competition law towards monopoly operators, "GATT does not want to prohibit the establishment of enterprises or units engaged in state monopoly trade, but only to limit the opportunities for their abuse ..." [6]. Because state monopoly trade, customs procedures, quantity restrictions, state subsidies and other means are regarded as important obstacles to international trade, in order to prevent state-owned trading enterprises from abusing their dominant position, GATT is stipulated in Article 2, paragraph 4, GATT/kl.

1, the definition of a state monopoly trading enterprise

According to paragraph 1 of the Understanding on the Interpretation of Article 17 of General Agreement on Tariffs and Trade 1994, the so-called enterprises dealing with state monopoly trade refer to government and non-government enterprises, including sales bureaus, which are granted exclusive rights, special rights or privileges, including statutory or constitutional powers. [8] That is, enterprises that handle state monopoly trade are a broad concept, including state-owned enterprises and private enterprises, as well as government agencies that actually engage in monopoly trade, such as the "marketing bureaus" of agricultural departments of European governments.

2. Abuse of market power is prohibited.

(1) Restrict the price increase of imported products when they are sold in the domestic market. According to the notes and supplementary provisions of GATT, the import price increase refers to "the extent to which the price charged by the import monopolist for imported products (excluding domestic taxes, other expenses attached to transportation and distribution, purchase, sales or further processing and reasonable profits within the scope of Article 3) exceeds the landed cost". Taking tobacco monopoly as an example, suppose that the international market price of a foreign famous brand cigarette is 100 yuan. In the absence of monopoly and competitors, after paying 10% tariff and other taxes and fees, the domestic market price is 10% profit. However, because the monopoly company has a monopoly position, it can increase the price to 200 yuan.

This ultra-high pricing behavior harms the interests of consumers, which is obviously prohibited by domestic competition law. However, because this behavior is essentially equivalent to increasing tariffs in disguise, for example, the original price of 125 yuan cigarettes added to 200 yuan is essentially equivalent to increasing tariffs by 75%. It can be seen that importing countries can use the price increase behavior of enterprises engaged in monopoly trade to curb domestic demand and restrict imports in disguise.

Article 17 of GATT stipulates the above price increase in principle, requiring enterprises engaged in state monopoly trade to buy or sell monopoly products only in accordance with "normal commercial considerations, including price, quality, availability, marketability, transportation and other purchase and sale conditions". In other words, enterprises engaged in state monopoly trade can only raise the prices of imported products within the scope of reasonable commercial factors (such as charging transaction fees and handling fees). This principle is embodied in paragraph 2 16 of the report of China's accession to the Working Group. Members of the Working Party pointed out that the domestic prices of most agricultural products in China are higher than the international prices, and this price difference allows enterprises or units engaged in state monopoly trade in China to import at low prices, but increases prices when awarding products to wholesalers and end users. Some members are worried that this practice will become more common after tariff quota management creates more access opportunities. These members were particularly concerned that price increases would reduce the competitiveness of imported products and limit the grade and quality of products available to end users in China. The representative of China said that enterprises engaged in state monopoly trade did not raise the prices of imported products, but charged normal transaction fees. Therefore, China's practice is in line with the obligations of the WTO and has not caused any trade distortion. Moreover, China's laws limit the fees charged by enterprises for handling state monopoly trade. ”。

Under the basic principle that the price increase of imported products by enterprises engaged in state monopoly trade must be reasonable, Article 2, paragraph 4, of GATT and Article 17, paragraph 4 of GATT also distinguish the following two situations according to whether the products of monopoly trade are in the membership schedule:

First of all, if the products monopolized by the state are products in the schedule of concessions, Article 2, paragraph 4 of GATT applies. If any contracting party establishes, maintains or authorizes a monopoly on the import of any product listed in the relevant schedule attached to this agreement in form or fact, such monopoly shall not be implemented in a way that provides more than the average protection level listed in the schedule, unless it is stipulated in the schedule or otherwise agreed by the parties who initially negotiated the concession. In other words, the level of protection brought by monopoly (that is, the degree of deviation from market competition or business habits) is limited to the bound tax rate listed in the schedule. [9]

Second, if the products monopolized by the state are not in the concession list, they will be guaranteed through transparent procedures. In this regard, Paragraph 4 (b) of Article 65-438+07 of the General Agreement on Tariffs and Trade stipulates, "If a contracting party establishes, maintains or authorizes the implementation of import monopoly on products that are not subject to the concessions mentioned in Article 2, it shall, at the request of another contracting party that has a considerable share in the trade of the products concerned, notify all contracting parties of the increase in the import price of the products in the recent representative period. If such notification cannot be made, it shall notify the products.

(2) Prohibition of discrimination

Discrimination is another manifestation of abusing monopoly position. Enterprises operating state monopoly industries are more capable of discrimination because they are in a dominant position of monopoly. For example, without considering market orientation and other factors, enterprises engaged in state monopoly trade may make discriminatory choices in which countries and regions to export goods and which countries to import goods from. When the product of monopoly trade is a unique commodity, the above discrimination is more likely to cause damage to other countries, thus attracting attention. For example, Article 2 14 of the report of China's accession to the Working Party stipulates that "in view of China's status as a major silk supplier in the world, some members of the Working Party are concerned about the supply of raw materials in the textile sector, especially silk".

The General Agreement on Tariffs and Trade prohibits the above discrimination. Paragraph 17 1 (a) of GATT stipulates that "each contracting party undertakes that if it establishes or maintains an enterprise engaged in state monopoly trade, no matter where it is located, or gives any enterprise exclusive rights or privileges in form or fact, the enterprise shall act in accordance with the general principle of non-discrimination treatment stipulated in these Provisions for government measures affecting the import and export of goods in private trade". At the same time, item (b) further requires that when enterprises engaged in state monopoly trade buy or sell monopoly products, "enterprises of other contracting parties shall be given sufficient competition opportunities to participate in such purchases or sales in accordance with commercial practices".

In short, enterprises operating state monopoly industries shall not engage in discriminatory business practices.

(2) Provisions prohibiting service trade monopoly enterprises from abusing market power.

Trade in services is an area that has just started in Uruguay Round negotiations, but it has made rapid progress. After 1994 reached the General Agreement on Trade in Services, 1997 further reached the Basic Telecommunication Agreement and the Financial Services Agreement. The field of service trade is a field with relatively perfect competition rules in the WTO system, which is characterized by both the general provisions on competition in the General Agreement on Trade in Services and the further requirements of the financial and telecommunications industries. All the above requirements are aimed at preventing operators in the monopoly position of member States from abusing market power, thus hindering free access to the service trade market.

1, the general principle of prohibiting monopolistic discrimination.

The basic principle of GATS is the most-favored-nation treatment principle. According to Article 2 of the General Agreement on Trade in Services, "Members shall immediately and unconditionally give services and service providers to any other member no less favourable than those they give to similar services and service providers in any other country".

Discrimination against monopoly operators may not only violate the most-favored-nation treatment principle, but also be prohibited by the competition law. Article 8 of GATS explicitly prohibits this practice. "Each Member shall ensure that any monopoly service provider within its territory does not act in a manner inconsistent with its obligations and specific commitments under Article 2 when providing monopoly services in the relevant market"; In addition, "a member's monopoly supplier directly or through its subsidiaries participates in the competition to provide services beyond the scope of its monopoly rights, and is bound by the specific commitment of the member, then the member shall ensure that the supplier does not abuse its monopoly position and acts in a way inconsistent with this commitment within its territory".

2, the specific provisions of the financial industry monopoly operators

The financial industry has traditionally been in the exemption field of anti-monopoly law, "because people think that competition in these fields does more harm than good." [10] However, domestic financial service operators in a monopoly position may often cause market obstacles to foreign financial service operators if they abuse their monopoly position. For example, according to the particularity of the financial industry, there may be a unique clearing institution. If such clearing institutions refuse to provide services to foreign financial service providers, foreign financial service providers will be unable to conduct business. Therefore, in 1994 "Understanding on Financial Services Commitment", not only members are required to prohibit the discriminatory behavior of financial service operators in monopoly position abusing market power; It also requires all members to minimize the monopoly in financial services and form a competitive market structure.

First of all, in Part B "Market Access" of the Understanding on Financial Services Commitment, Article 1 stipulates that "Members shall list the existing monopoly rights in their schedules of financial services, and make efforts to eliminate these monopoly rights or narrow their scope".

Secondly, in Part C "National Treatment" of the Understanding on Financial Services Commitment, Article 2 stipulates that "if a member requests to join, participate in or enter any self-regulatory organization, securities or futures exchange or market, clearing institution or any other organization or association, so that the financial service provider of any other member can provide financial services on an equal basis with the financial service provider of that member, or if the member directly or indirectly provides privileges or advantages to such entities when providing financial services,

3, the specific provisions of the telecom monopoly operators

According to the principle of traditional economics, the telecommunications industry is a natural monopoly industry. In recent years, with the development of technology, the telecommunications industry is evolving into a competitive market. However, new entrants to the telecommunications industry are particularly vulnerable to the restrictions of monopoly operators. If monopoly operators refuse to provide interconnection for new entrants, new telecom operators cannot enter the market at all. Therefore, in order to ensure that member countries' commitments on telecom market access are not affected by monopolistic telecom operators' restrictive behaviors, the Telecommunication Service Annex in 1994 and the Telecommunication Management Standard Reference Document in 1997 [1 1] discriminate against monopolistic telecom operators' behaviors that may abuse market power.

According to Article 5 of the Telecommunication Services Annex, "each member shall ensure that any service provider of any other member can access and use its public telecommunication transmission network and services on reasonable and non-discriminatory terms and conditions to provide the services listed in its schedule.

The Reference Document on Telecommunications Management Standards further clarifies the prevention of monopolistic telecommunications operators from restricting competition. Article 1 of this document is a clause of "competition safeguard measures", which stipulates that "(1) In order to prevent anti-competitive behaviors in the telecommunications industry, appropriate measures should be maintained to prevent major providers from engaging in or continuing anti-competitive behaviors independently or jointly; (2) Maintaining the above anti-competitive behaviors should include: (a) anti-competitive cross-subsidies; (b) Using information with anti-competitive effect obtained from competitors; (c) Failing to provide technical information of key facilities and relevant commercial information required for providing services to relevant service providers in time ".

(3) Provisions prohibiting the abuse of market power in the field of intellectual property rights

Abuse of intellectual property rights is not an independent type of monopolistic behavior, but a vertical agreement and abuse of dominant position because of its different nature. [12] In the Agreement on Trade-Related Aspects of Intellectual Property Rights, the abuse of dominant position in the field of intellectual property rights is stipulated.

Article 8, paragraph 2, of the Agreement on Trade-related Aspects of Intellectual Property Rights requires member States to pay attention to preventing intellectual property rights holders from abusing their rights to harm each other. According to this paragraph, Member States "may need to take appropriate measures to prevent IPR holders from abusing IPR or adopting practices that unreasonably restrict trade or adversely affect international technology transfer, as long as these measures are in line with the provisions of this Agreement". In the subsequent section 8 of the Agreement on Trade-related Aspects of Intellectual Property Rights, the rules for controlling restrictive competition in the licensing of intellectual property rights agreements are further specified in detail. According to Article 40 of this section, since licensing activities or conditions related to intellectual property rights that restrict competition may adversely affect trade and hinder the transfer and dissemination of technology, Members may clearly stipulate in their legislation licensing activities or conditions that may constitute abuse of intellectual property rights and adversely affect competition in relevant markets under specific circumstances, and take appropriate measures to prevent or control such activities. The agreement specifically lists the abuse of intellectual property rights that can be explicitly prohibited: (1) exclusive feedback conditions; (2) the conditions to prevent the validity from being questioned; (3) Compulsory blanket license, etc. The above three behaviors are essentially unreasonable conditions, are manifestations of abuse of market power, and are also prohibited by the competition law.

According to Article 3 1 (k) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, when an intellectual property right holder abuses his rights and conducts acts of restricting competition, member States may take compulsory licensing as a means to punish such acts of restricting competition. The compulsory license in this case has the following differences from the compulsory license in the ordinary procedure; (1) Compulsory licensing of ordinary procedures requires that the licensee should have made efforts to obtain authorization from the obligee in accordance with reasonable commercial terms and conditions, but failed in reasonable practice; However, as a penalty holder, the compulsory license to restrict competitive behavior does not need to meet the above conditions; (2) The products produced under the compulsory license of ordinary procedures shall be mainly supplied to the domestic market of the country where the compulsory license is located; However, the compulsory license to punish the obligee for restricting competition behavior does not necessarily meet this requirement; (3) Compulsory licensing of ordinary procedures shall pay the obligee appropriate remuneration and consider the economic value of authorization; To punish the amount of remuneration under the compulsory enforcement license of the right holder's restrictive competition behavior, we can consider the need to correct the restrictive competition behavior, that is, the economic value factor of the amount of remuneration will be considered less, and its compensation will be emphasized more.

However, it is worth noting that the provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights on the abuse of rights in intellectual property licensing agreements are different from those of enterprises, financial service providers and telecommunications service providers that handle state monopoly trade and adjust monopoly status. Member States must prohibit the above-mentioned types of abuse of market dominance; However, according to Articles 8 and 40 of the Agreement on Trade-related Aspects of Intellectual Property Rights, member States have the right to restrict the abuse of their rights by intellectual property owners through legislation. But this is only the right given to member States by WTO rules, and member States are not obliged to pass the above legislation. Member States can choose to restrict competition through compulsory licensing control, which is also a right, not an obligation.

In addition, the Agreement on Trade-related Aspects of Intellectual Property Rights does not cover all cases of abuse of intellectual property rights. According to article 40, only the abuse of intellectual property rights in intellectual property licensing transactions belongs to the object of article 40. "Restrictive competitive behaviors or behaviors that affect technology transfer outside the contract license, such as intellectual property clauses in R&D, cooperation agreements or joint venture agreements, and unilateral behaviors of enterprises with market power, do not belong to the problems solved in Article 40".

Analysis of Competition Rules under WTO System (3)

Third, the provisions against cartels in WTO rules.

According to Blake's legal dictionary, cartel refers to "an alliance in which producers of any product unite to control their production, sales and prices and gain a monopoly position in any particular industry or commodity". [14] Cartels are also commonly called horizontal restraint agreements. Cartels can be divided into domestic cartels, international cartels and import and export cartels. Domestic cartel is a joint action of several domestic manufacturers against the domestic market, which is generally strictly prohibited by the competition laws of various countries; International cartel is a joint action of several manufacturers in different countries aiming at their own markets. Because of its obvious harm, it has recently attracted the attention of law enforcement departments in various countries and has been cracked down through law enforcement cooperation. Import and export cartel is a joint action of several domestic manufacturers against foreign markets, which is often exempted by competition laws of various countries because it is beneficial to their own interests. The harm of import and export cartels lies in the characteristics of "harming others and benefiting themselves" and "beggar-thy-neighbor", and all countries hope to benefit their own interests. But if countries compete to adopt it, it will be a prisoner's dilemma in the game, which will cause losses to everyone's interests.

Under the current rules of the WTO, there are no clear provisions on international cartels that affect international trade.

Article 8, paragraph 5, of GATS covers domestic cartels, on the premise that cartels among domestic service providers violate the most-favored-nation treatment principle and hinder foreign service providers from entering the market. As mentioned above, the purpose of Article 8 of the General Agreement on Trade in Services is to prevent service operators in a monopoly position from abusing their market power to hinder the entry of foreign service operators through the most-favored-nation treatment principle; However, if cartels between domestic service operators have the same effect, they are also prohibited. In this regard, Article 8, paragraph 5, of the General Agreement on Trade in Services stipulates that "if a member (a) authorizes or establishes a small number of service providers in form or fact, and (b) substantially prevents these service providers from competing with each other within its territory, the provisions of this Article shall apply to such franchised service providers". In addition, article 15 1 of the government procurement agreement mentions the cartel behavior of enterprises colluding in bidding, but only stipulates that "if there is collusion in the bidding submitted by suppliers, limited bidding may be conducted".

For import and export cartels, there are two provisions in the current WTO rules: when such acts are government-supported means to limit the import and export quantity or "grey area measures" prohibited by the Agreement on Safeguards [15], they will be prohibited.

First, Article 1 1 of GATT stipulates that "no contracting party shall establish or maintain prohibitions or restrictions on the import of products from the territory of any other contracting party, or on the export or sale of products for export to the territory of any other contracting party, regardless of whether such prohibitions or restrictions are implemented through quotas, import and export licenses or other measures". Judging from the written expression of this article, this article is mainly aimed at the measures taken by the government to limit the number of imports and exports, and is not simply applicable to the behavior between enterprises. However, if an enterprise cartel aimed at limiting the quantity of import and export goods is supported by the government, such cartel is prohibited by this article because of the nature of its government behavior. In the case of 1988 Japanese semiconductor, the GATT expert group found that the export cartel formed by Japanese semiconductor manufacturers was under the administrative guidance of the Japanese government, so it should be prohibited by GATT Article 1 1. [ 16]

Secondly, Article 1 1 Paragraph (b) of the Agreement on Safeguards stipulates that "a Member shall not seek, adopt or maintain any voluntary export restraints, orderly sales arrangement or any other similar measures during export or import. These measures include measures taken by a single member and measures taken according to agreements, arrangements and understandings reached by two or more members. " The so-called "similar measures" include "export control, export price or import price monitoring system, export or import supervision, compulsory import cartels and schemes for issuing import and export licenses as appropriate"; Paragraph 3 stipulates that "Members shall not encourage or support public and private enterprises to adopt or maintain non-governmental measures equivalent to those referred to in paragraph 1". Thus, according to the Agreement on Safeguard Measures, if an enterprise's import and export cartel is regarded as a "grey area measure", this behavior violates the provisions of paragraph 3 of Article 1 1.

Four. Provisions of WTO competition enforcement rules

National treatment principle of competition law

Article 3 of GATT stipulates the principle of national treatment of domestic taxes and domestic laws and regulations.

Paragraph 4 of Article 3 of GATT stipulates that "when products from the territory of any contracting party are imported into the territory of any other contracting party, they shall enjoy no less treatment than similar products in terms of all laws, regulations and provisions affecting their domestic sales, clearly marked sales, purchase, transportation, distribution or use."

Regarding the fourth paragraph above, GATT expert group 1958 explained in the case of discrimination against imported agriculture in Italy [17], "The fourth paragraph refers to the laws, regulations and rules that affect domestic sales and purchases, not those that directly govern sales and purchases. Because the expression' influence' is used in this clause, it means that the legislative intention of the drafter of this clause is not only to include laws, regulations and provisions on sales and purchases in the scope of restrictions, but also to include laws and regulations that affect the competitive situation. "

Therefore, according to paragraph 4 of Article 3 of GATT, the domestic competition law of WTO members must also use the principle of national treatment. This is especially reflected in the procedural provisions of competition law enforcement. In the process of competition law enforcement, domestic parties and foreign parties should enjoy the same rights and obligations. For example, when a foreign enterprise's products exported to China are improperly influenced by some restrictive competition behaviors in the China market, the foreign enterprise should enjoy the same rights as China enterprises in terms of the right to appeal and sue the competition law enforcement agencies.

(2) Provisions on Supervision of Competition Enforcement in Member States

According to Article XXIII of GATT