限定转售价格被罚7.6亿，扬子江案有哪些看点和启示

摘 要
2021年4月15日，中国国家市场监督管理总局对扬子江药业集团有限公司（“扬子江药业”）实施纵向价格垄断协议行为作出行政处罚（“本案”），罚款7.64亿元人民币。作为中国医药工业领域的龙头企业，扬子江药业此次被罚是中国反垄断执法机构在医药领域迄今为止开出的最大罚单，体现了中国反垄断执法机构对医药行业的全方位重点监管，同时本案也对所有分销型企业实施纵向价格垄断行为又一次敲响了警钟。
On April 15, 2021, China's State Administration for Market Regulation imposed administrative penalty on Yangtze River Pharmaceutical Group Co., Ltd. (“Yangtze River Pharmaceutical”) for its implementation of vertical price monopoly agreement (“resale price maintenance, RPM”), with a fine of CNY 764 million (“the Case”). Yangtze River Pharmaceutical is the leading company in China’s pharmaceutical industry, and the administrative fine imposed on it is the largest one ever since in the pharmaceutical sector. This reflects that China’s anti-monopoly law enforcement agency is closely supervising all kinds of practices in pharmaceutical industry. Meanwhile, this Case has once again served as a wake-up call to all the companies with distribution channels to avoid reaching and implementing RPM.
一、涉案行为简介
I. Brief on the Alleged Conducts
扬子江药业在本案中被处罚的涉案行为包括：自2015年至2019年，在中国大陆范围内通过签署合作协议、下发调价函、口头通知等方式，与药品批发商、零售药店等下游企业达成固定药品转售价格和限定药品最低转售价格的协议，并通过制定实施规则、强化考核监督、惩罚低价销售经销商、委托中介机构监督线上销售药品价格等措施保证该协议实施。
The alleged conducts of Yangtze River Pharmaceutical that are penalized include: reaching agreements to fix the resale prices of drugs and restrict the minimum resale prices of drugs with downstream companies such as drug wholesalers and retail pharmacies by signing cooperation agreements, issuing price adjustment letters, making verbal notifications, etc., and implementing RPM by formulating the implementation rules, strengthening evaluation and supervision, penalizing the distributors who sold at low prices, entrusting intermediary agencies to monitor the online prices of drugs, etc. from 2015 to 2019.
二、处罚决定要点提示
II. Highlights of the Penalty Decision
作为最新的纵向价格垄断协议案件，本案处罚决定对企业及时了解纵向垄断协议的最新执法关注和思路具有重要意义。我们对其中部分要点提示如下：
As the latest administrative penalty case concerning RPM, it provides companies with important guidance about the latest concerns and approaches of the law enforcement agency on RPM. Hereby, we would like to draw your attentions to some of the noteworthy highlights, as listed below:
要点提示一：执法机关对转售价格维持行为“原则禁止+例外豁免”态度再次被重申。扬子江药业提出其产品市场份额较低，相关行为不会产生排除、限制竞争的影响。执法机关在本案处罚决定书中，正面回应该意见称，达成纵向价格垄断协议本身即具有排除、限制竞争的目的和影响，适用“原则禁止+例外豁免”原则。
Highlight 1: The law enforcement agency has once again reiterated the “prohibited in principle + exemption by exception” approach for RPM. Yangtze River Pharmaceutical has claimed that the market share of its products is low and that the alleged conducts will not cause exclusion or restriction of competition. In the penalty decision of the Case, the law enforcement agency has directly rejected such claim by saying that the reaching of RPM itself has the aim and effects of excluding and restricting competition and shall be subject to the “prohibited in principle + exemption by exception” approach.
要点提示二：执法机关再次关注企业实施控价行为中的窜货管理问题。本案中，执法机关明确指出扬子江药业对经销商的窜货管理，属于实施固定和限定价格协议的相关措施。
Highlight 2: The law enforcement agency once again paid attention to the flipping management issue in the implementation of price control by companies. In the Case, the law enforcement agency clearly pointed out that Yangtze River Pharmaceutical’s management of the distributors’ flipping issue is an implementation of RPM.
要点提示三：通过第三方中介监督、数据对接等方式维护线上转售价格的行为同样被执法机关关注。本案中，执法机关认定扬子江药业实施垄断协议的方式包括聘请中介，监督和维护网上零售价格，此外，执法机关证据显示，扬子江药业还签署了相关数据直连实施协议。
Highlight 3: The maintenance of online resale prices through third-party intermediary’s supervision and data docking is also scrutinized by law enforcement agency. In the Case, the law enforcement agency found that Yangtze River Pharmaceutical’s implementation of monopoly agreement includes the engagement of an intermediary to monitor and maintain online retail prices. In addition, law enforcement agency’s evidence shows that Yangtze River Pharmaceutical has signed an agreement on directly connecting the data with distributors.
要点提示四：集团公司作为决策者、实施者和监督者，最终被认定为违法主体，并以集团全口径销售额作为罚款基数进行处罚。本案中，执法机关认定扬子江药业是整个集团公司的核心和中枢，是决策者、实施者和监督者，参与垄断行为的子公司意志具有从属性，子公司的垄断行为视同为当事人行为。这也是本案按扬子江药业集团公司收入处罚的原因，同时也再次体现了执法机关“全口径”的罚款计算态度。
Highlight 4: The group company, as the decision maker, implementer, and supervisor, was ultimately identified as the party who violated the law and was fined on basis of the group company’s total revenue of all products (not limited to the product concerning RPM issue involved in the Case). In this Case, the law enforcement agency found that Yangtze River Pharmaceutical is the core and center of the entire group, acting as decision maker, implementer, and supervisor. The wills of its subsidiaries participating in the monopoly conducts is subordinate to the group company, and the subsidiaries’ monopoly conducts were regarded as if they were conducted by Yangtze River Pharmaceutical. This is also the reason why the Case was fined based on the revenue of the whole group, which once again illustrates the stance of the enforcement agency on using the party’s total revenue of all products as the fine base.
三、本案对纵向垄断合规的启示
III. Takeaways on the Anti-Monopoly Law Compliance in Vertical Management
本案作为又一起典型的纵向价格垄断协议案件，传递了执法的最新态势，对于企业及时了解并更新纵向合规体系具有重要意义。
As a typical case concerning RPM, the Case conveys the latest trend of law enforcement and is of great significance for companies to update their understanding of vertical compliance system in time.
合规启示一：“原则禁止+例外豁免”原则、“全口径”罚款计算原则再次得到重申，在中央加强反垄断大背景下，企业应当高度警惕，文本和实操双层面的转售价格维持风险。企业应当对任何书面控价文件进行全面排查，并必须将合规要求进一步落地到业务实践中。
Takeaway 1: The “prohibited in principle + exemption by exception” approach and the calculation method of fine that uses the total revenue of all products as the base have been reiterated. In the context that China’s central government is strengthening the anti-monopoly work, companies should be highly vigilant against RPM risks in their documents and in their practices. Companies should conduct a comprehensive audit into all written documents concerning price control and must further fulfill the compliance requirements in their business practices.
合规启示二：谨慎评估渠道窜货管理，充分、准确判断是否会被认为是控价手段。窜货管理是企业常见的分销渠道管理措施。考虑到执法机关对窜货管理的高度关注，窜货管理的原因、目的、程度、合理性、方式方法等，都需要在文本层面和实操层面，进行谨慎评估。
Takeaway 2: Carefully evaluate the flipping management to fully and accurately assess whether it will be found as means of price control. Flipping management is a common measure in a company’s distribution management. Considering that the law enforcement agency has paid great attention to the flipping management, the reason, purpose, extent, reasonableness, and means of flipping management should be carefully evaluated at both textual and practical levels.
合规启示三：谨慎把握搜集市场价格行情中的纵向价格垄断协议风险。目前很多企业在日常经营中，会采取要求分销商、零售商对接销售信息系统，或聘请第三方了解市场价格行情的措施，需要高度谨慎判断其中纵向垄断协议风险程度。此外，尽管本案中并不直接涉及，对于搜集分销商、零售商信息，也需要警惕企业直营业务和分销业务的敏感信息交换问题，以及在渠道管理中的轴辐协议风险。
Takeaway 3：Carefully control the RPM risk when collecting market prices. Nowadays, in daily operations, many companies take measures to require distributors and retailers to connect their sales information systems to the company’s or engage a third party to collect price information in the market. For these practices, companies need to be highly cautious in evaluating the existence and degree of RPM risks. In addition, although it is not the issue discussed in this Case, companies need to be cautious with the exchanges of sensitive information between their direct sales and their distribution channels (dual distribution) when collecting information from distributors and retailers, as well as the hub-and-spoke risks in sales channel management.