The main business scope of a gas company: pipeline natural gas storage, transportation and sales; construction of urban natural gas pipeline networks and supporting facilities; technical development, technical consulting, technical services and related technology transfer of gas products; investment in urban natural gas projects ; Wholesale and retail of gas appliances and chemical products; supply of gas transmission equipment and materials; natural gas users' account opening, payment, recharging and repair services, as well as related business handling and consulting services.
Text: Zhu Yijun, Zong Siyan (Jiangsu Provincial Administration for Industry and Commerce)
In March 2005, the company signed the "Urban Pipeline Gas Franchise Agreement" (hereinafter (referred to as the "Franchise Agreement"), which stipulates that it will be franchised to exclusively operate natural gas pipeline storage, transportation and sales, natural gas utilization, technology development, and urban municipal natural gas pipeline network and supporting facilities construction, transportation and sales within the urban area of ??the city. Under this agreement, the company becomes the exclusive supplier of natural gas services to its cities.
1. Introduction to the case
In February 2015, the Jiangsu Provincial Administration for Industry and Commerce received reports from some real estate development companies where the company was located, reflecting that the gas company was in the process of developing new residential communities. , taking advantage of its exclusive gas supply market position, restricts the installation of natural gas pipelines in properties developed by real estate development companies to be undertaken by the gas company. After investigation, the report was found to be basically true. After approval and authorization from the State Administration for Industry and Commerce, the case was officially opened for investigation in June 2015.
2. Main illegal facts
(1) The gas company took advantage of its market dominance in monopolizing natural gas supply and exceeded the scope of the franchise by mandating that all gas pipeline projects of real estate companies must be carried out by The gas company contracted the construction. Since the gas company has the exclusive right to operate natural gas in the region, all real estate development projects must apply to it for natural gas connection. The gas projects involved in real estate development projects also need to be inspected and accepted by the gas company and issued. Only after passing the certificate can you apply for a real estate sales license. To this end, all real estate companies in the area where the company is located must sign a "Gas Pipeline Installation Contract" with it, stipulating that the real estate company will hand over the gas pipeline construction of the development project to the gas company and pay 2,500 yuan per household to the gas company. Installation fee.
(2) The gas company abused its dominant market position and subcontracted gas pipeline construction projects. Without legitimate reasons, it designated construction companies to purchase and use designated materials before obtaining construction business in accordance with the "Gas Pipeline Installation Contract" Later, the gas company subcontracted its business to five gas construction companies, which were respectively responsible for pipeline installation and construction, as well as the procurement of auxiliary materials such as paint and sealing materials. The main materials involved in the gas project, such as pipes, pipe fittings, valves, gas meters, and pressure regulating boxes, are all designated and provided by the gas company. Their costs are included in the package calculation of the installation fee. Real estate development companies have no right to purchase or choose.
It was found that from 2012 to 2014, the gas company took advantage of its regional exclusive operating status to charge gas pipeline connection and installation fees of 41.8821 million yuan, 58.8804 million yuan and 58.8804 million yuan, respectively. 74.1434 million yuan. In 2014, its company's total sales were 501 million yuan.
3. Focus of Dispute
(1) Regarding the Scope of Franchise Rights
The gas company believes that based on the "Urban Dispute Agreement" signed between it and the local construction bureau, Through the Pipeline Gas Franchise Agreement, the company has obtained the franchise qualification for natural gas and related businesses in the area; the natural gas pipeline installation project within the real estate development project in the area should also be included in the scope of the franchise.
The provincial and municipal industry authorities of the gas company also believe that it is industry practice for the franchise scope to include natural gas pipeline installation projects for real estate development projects, and issued a formal document to the case handling agency.
The case-handling agency believes that according to the "Franchise Agreement", the franchise right granted to the gas company by the local Municipal Construction Bureau refers to the exclusive operation and maintenance of municipal pipeline gas in the franchise area during the franchise period. facilities, supply gas to users in the form of pipeline transmission, provide emergency repair and emergency services for related pipeline gas facilities, etc., and collect fees. The agreement also clearly stipulates that municipal pipeline gas facilities refer to all gas pipeline facilities within the municipal planning red line, while courtyard pipeline gas facilities refer to all gas pipeline facilities outside the municipal planning red line. In other words, taking the municipal planning red line as the boundary, urban gas pipeline facilities are divided into gas pipeline facilities within the municipal planning red line and gas pipeline facilities outside the municipal planning red line. According to the "Franchise Agreement", the gas company only obtained the gas pipeline franchise rights within the municipal planning red line, and the courtyard pipeline gas facilities of the real estate development project were facilities outside the municipal planning. Therefore, the gas company did not obtain the franchise right for the courtyard pipeline gas facilities in the real estate development project. However, relying on its dominant market position in natural gas supply, the company intervened in this business by requiring real estate companies to sign a "Gas Pipeline Installation Contract" with it, which violated the principle of fair competition, seriously disrupted the market order, and complied with the Anti-Monopoly Law "Abuse of dominant market position as stipulated in Article 17.
The views of the case-handling agency were recognized by experts and the Legal Affairs Committee of the Provincial People's Congress.
(2) Determination of “Sales of the Previous Year”
Article 47 of the Anti-Monopoly Law stipulates: “Operators violate the provisions of this Law and abuse market dominance. If the company has a certain status, the anti-monopoly law enforcement agency will order it to stop the illegal activities, confiscate the illegal income, and impose a fine of not less than 1% but not more than 10% of the previous year's sales." Therefore, how to understand "previous year's sales" is also unclear. became the focus of controversy in this case.
The gas company believes that "sales of the previous year" refers to the corresponding amount generated by the implementation of illegal activities, that is, the company's sales in its area in 2014 was 74.1434 million yuan, rather than the company's current sales. The overall annual sales amounted to RMB 501 million.
The case-handling agency believes that according to Article 47 of the Anti-Monopoly Law, the "sales volume of the previous year" should be the overall sales volume of the illegal party for that year. The reasons are as follows: First, the law clearly states "stop illegal activities and confiscate illegal gains", but does not impose any restrictions on the "sales of the previous year". Therefore, the "sales of the previous year" in the law are Arbitrary artificial interpretation is contrary to the original intention of the law. Second, the perpetrators of monopolistic behaviors are generally large enterprises in the industry or key enterprises with monopoly status. Their illegal activities last for a long time, are wide-ranging, and have far-reaching impacts. For example, the gas company in this case began to commit illegal acts in 2005 and continued until 2015, which spanned ten years. If it is allowed to artificially interpret the law and reduce the cost of illegal acts, it will fundamentally violate the principle of punishing illegal acts. The original intention of the legislation is to protect fair competition in the market.
In the end, the case handling agency determined that the company's sales in the previous year were 501 million yuan. The final administrative penalty imposed was to order the company to stop illegal activities and impose a fine of 5% of the previous year's sales, totaling 25.05 million yuan.
4. Case Analysis
The report of the 19th National Congress of the Communist Party of China requires “accelerating the improvement of the socialist market economic system” and “the reform of the economic system must be based on the improvement of the property rights system and the marketization of factors” Focus on allocation, achieve effective incentives for property rights, free flow of factors, flexible price response, fair and orderly competition, and survival of the fittest." It is necessary to "clean up and abolish various regulations and practices that hinder a unified market and fair competition", "break administrative monopolies, and prevent market monopoly."
According to the characteristics of different industries such as water, oil, natural gas, electricity, transportation, and telecommunications, network and transportation should be separated to enable market-based allocation of public resources and let the market play a decisive role in resource allocation.
In this case, the gas pipeline construction engineering field in the new residential area developed by the real estate enterprise, as well as the corresponding construction material market, are both a free and fully competitive market. As long as enterprises meet the conditions stipulated by the state, they can participate in competition freely and equally to achieve the optimal allocation of market resources. However, the gas company in this case abused its monopoly position in the exclusive supply of natural gas and set specific conditions for entering this market, making it impossible for enterprises with corresponding qualifications to enter the market freely and directly, and the role of the market mechanism cannot be fully exerted. Disturbing the normal market order.
In the future, competition law enforcement departments should focus on various regulations and practices that hinder a unified market and fair competition as the main focus of law enforcement, prevent market monopoly, and ensure that my country’s socialist market economic system is improved as soon as possible.