The Incursion of Antitrust into China’s Platform Economy

AuthorSandra Marco Colino
Published date01 June 2022
Date01 June 2022
DOI10.1177/0003603X221084152
Subject MatterArticles
https://doi.org/10.1177/0003603X221084152
The Antitrust Bulletin
2022, Vol. 67(2) 237 –258
© The Author(s) 2022
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DOI: 10.1177/0003603X221084152
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Article
The Incursion of Antitrust into China’s
Platform Economy
Sandra Marco Colino*
Abstract
This article adopts a holistic approach to China’s antitrust strategy toward the platform economy.
As enforcers everywhere come to terms with the unique challenges posed by the market power
amassed by digital gatekeepers, China’s sudden, fierce attack on its own tech giants has been as
effective as it has been baffling to observers, and has helped antitrust policy progress by leaps
and bounds. However, antitrust is only one of several battlefields of the war on platforms. This
article first dissects the competition law developments that have taken place in the first year of
China’s “Big Tech crackdown,” focusing on enforcement, policymaking, and law and institutional
reform. Thereafter, this article joins the dots and assesses the results of the (partly) Big Tech-
motivated refurbishment of the Chinese antitrust law and policy landscape. It identifies certain
risks stemming from the new reinforced system, and proposes ways circumvent these and reap
the benefits of the improved legal framework.
Keywords
antitrust, competition law, platform economy, digital economy, innovation, Anti-Monopoly Law,
China
I. Introduction
China’s rulers are constantly navigating between the Scylla and Charybdis of growth and control. To get more
of one, they often have to sacrifice a measure of the other.1
*Faculty of Law, The Chinese University of Hong Kong, Hong Kong, China
Corresponding Author:
Sandra Marco Colino, The Chinese University of Hong Kong, Hong Kong, China.
Email: s.marcocolino@cuhk.edu.hk
1084152ABXXXX10.1177/0003603X221084152The Antitrust BulletinMarco Colino
research-article2022
1. James Kynge, Chaos vs Control: China’s Communists and a Century of Revolution, Finan. Times, June 25, 2021, https://
www.ft.com/content/6b3a7274-8fac-403e-a385-3f8920f5b369.
238 The Antitrust Bulletin 67(2)
Keeping up to date with the competition law developments affecting the platform economy2 in China
has become a quasi-impossible endeavor. Since Dec. 2020, when the Chinese Communist Party (CCP)
announced plans to strengthen antitrust enforcement as part of a strategy to prevent the “disorderly
expansion of capital,”3 the State Administration for Market Regulation (SAMR) and other Anti-
Monopoly Enforcement Agencies (AMEAs) have been exerting their antitrust powers with methodical
and unrelenting thoroughness. Although multiple sectors have been targeted,4 tech giants are undoubt-
edly bearing the brunt of the investigations. China’s “tech crackdown”5 has garnered significant public
approval,6 and has been arguably motivated by “a fervent desire to streamline and regulate the nation’s
massive platform economy that was tending to grow too big and too fast in a haphazard way that threat-
ened to create monopolies and destabilize the economy.”7 The cases against the likes of Alibaba and
Tencent have attracted the lion’s share of the media attention, yet these high-profile investigations are
all the more interesting when considered in the context of a wider movement that exceeds both national
boundaries and the realms of antitrust.
It is imperative to acknowledge the innovative benefits of digital platforms, and the role they play
in facilitating trade and global transactions.8 That said, these admirable achievements cannot give
these companies carte blanche to engage in harmful conduct. In recent years, jurisdictions including
the United States, Mexico, Brazil, the European Union, Germany, the United Kingdom, India, or
Australia, each in their own fashion,9 have been wrestling with the issues associated with the power
2. There is some dispute as to what constitutes a platform. In this article, the term platform is used as a synonym to tech
giant, to refer to companies providing core platform services, which according to the European Commission would include
“online intermediation services”, “online search engines”, “online social networking sites”, “video-sharing platform ser-
vices”, “number-independent interpersonal communication services”, and “advertising services”. See Art. 2(2) of the
Proposal for a Regulation of the European Parliament and of the Council on Contestable and Fair Markets in the Digital
Sector (Digital Markets Act) COM(2020) 842 final (Dec. 15, 2020), https://eur-lex.europa.eu/legal-content/EN/TXT/PDF
/?uri=CELEX:52020PC0842&from=en. But see Thibault Schrepel, Platforms or Aggregators: Implications for Digital
Antitrust Law, 12 . eur. CompeT. Law praCT.J 1 (2021), arguing that a distinction should be made between platforms and
aggregators. Given that, as Schrepel himself explains, “[t]ech giants are commonly referred to as ‘platforms’ in our every-
day language”, in this article “platform” refers to both platforms and aggregators.
3. See, inter alia, China to Keep Economic Operations “Within Reasonable Range” in 2020—Politburo, reuTers, Dec. 11,
2020, https://www.reuters.com/article/china-economy-politburo-idINKBN28L1H0; Giants Tencent, Bytedance among the
Companies Reined in by China, BBC news, Apr. 30, 2021, https://www.bbc.com/news/business-56938864; Lingling Wei,
Jack Ma Makes Ant Offer to Placate Chinese Regulators, waLL sTreeT J., Dec. 20, 2020, https://www.wsj.com/articles/
jack-ma-makes-ant-offer-to-placate-chinese-regulators-11608479629.
4. By way of example, on 9 April 2020 the SAMR imposed fines totalling RMB 325.5 million on a group of pharmaceuti-
cal companies for excessive pricing and unfair trading conditions in the market for injectable calcium gluconate. SAMR,
Administrative Penalty Decision (2020) No. 8, http://gkml.samr.gov.cn/nsjg/fldj/202004/t20200414_314248.html.
5. See, e.g., Brian Liu & Raquel Leslie, China’s Tech Crackdown: A Year in Review, LawFare, Jan. 7, 2022, https://www.
lawfareblog.com/chinas-tech-crackdown-year-review; Coco Feng & Xinmei Shen, China Tech Crackdown: In 2021,
Technology Giants Came Under Intense Scrutiny after Sleeping Watchdogs Awakened, souTh China morning posT, Dec.
22, 2021, https://www.scmp.com/tech/big-tech/article/3160529/china-tech-crackdown-2021-technology-giants-came-
under-intense; Billy Perrigo, Here’s What to Know about China’s Sweeping Tech Crackdown—And Why It Could Make
U.S. Big Tech Regulation More Likely, Time, Sept. 1, 2021, https://time.com/6094156/china-big-tech-regulation-us/; For
a general overview of the competition regimes of Mainland China and Hong Kong, see Emanuela Lecchi, Hong Kong,
China, and the Disruption of Antitrust, 31 washingTon inT. Law J. (forthcoming, 2022).
6. Grady McGregor & Naomi Xu Elegant, China’s Consumers Are Turning against the Homegrown Big Tech Giants They
Once Revered, ForTune, Jan. 16, 2021, https://fortune.com/2021/01/15/china-big-tech-backlash-techlash-jack-ma-alibaba/.
7. Chen Yu, Curbing Monopolistic Behavior in Tech Firms, China DaiLy, Nov. 22, 2021, https://www.chinadailyhk.com/
article/248527.
8. The European Commission, for instance, acknowledges these benefits in the Explanatory Memorandum of the Digital
Markets Act, supra note 2.
9. See, e.g., Antitrust and Digital Platforms: An Analysis of Global Patterns and Approaches by Competition Authorities,
worLD Bank (2021), https://openknowledge.worldbank.org/bitstream/handle/10986/36364/Antitrust-and-Digital-
Platforms-An-Analysis-of-Global-Patterns-and-Approaches-by-Competition-Authorities.pdf?sequence=5&isAllowed=y.

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