CHINA Law and Practice Contributed by: Yi Xue, Zhong Lun
An NCA cannot intervene in damages actions on its own initiative and can only participate in the follow-on litigation at the request of the courts. As provided in the Antitrust Judicial Interpretation, the courts may ask the NCA that has made the penalty decision to explain the relevant circumstances if necessary. As for the decisions of foreign NCAs, they may only serve as reference for the court and have limited influ - ence. 2.4 Proof Burden of Proof As antitrust private lawsuits fall within the scope of civil lawsuits, the general rules in the Civil Procedure Law and the Provisions of the Supreme People’s Court on Evidence in Civil Proceedings (the “Civil Evidence Pro - visions”) apply to such actions. Therefore, the general principle is that the plaintiff bears the burden of proof for its claims, whereas the defendant needs to provide the evidence for its defence and counterclaims. When it comes to antitrust civil lawsuits, the Antitrust Judicial Interpretation provides more specific rules on the allocation of the burden of proof in several sce - narios. Horizontal monopoly agreements In general, for horizontal monopoly agreements, the plaintiff will bear the burden of proving the existence of the agreement involving one of the activities listed in Article 17 of the AML, whereas the defendant will bear the burden of proving that the agreement does not have the effect of excluding or restricting the com - petition. In cases where horizontal monopoly agreements are established through concerted practices by the defendants, the plaintiff can shift the evidential burden to the defendants by demonstrating: • a consistency of market conduct among the defendants; and • evidence of a meeting of minds or exchange of sensitive information between the defendants, or an explanation of changes in the market structure or competitive landscape.
Once these elements are established, the defendants must then justify the consistency of their conduct. Vertical monopoly agreements Article 18 of the AML makes it clear that RPM agree - ments will not be prohibited if the undertakings can prove that the agreements do not have the effect of eliminating or restricting competition, indicating that the RPM is presumed to be illegal. To be consistent with the AML, Article 21 of the Antitrust Judicial Inter - pretation provides that the defendant will bear the burden of proving that the disputed RPM agreement does not have the effect of excluding or restricting the competition. In cases involving non-price vertical monopoly agree - ments, as neither the AML nor the Antitrust Judicial Interpretation directly address the allocation of the burden of proof, the general principle that the plaintiff bears the burden of proof for its claims may still apply. Abuse of market dominance For cases concerning abuse of market dominance, the Antitrust Judicial Interpretation provides a gen - eral principle for the allocation of the burden of proof. In other words, the plaintiff will demonstrate that the defendant possesses market dominance in the rel - evant market and that it has abused the dominance by violating Article 22 of the AML, whereas the defendant will prove that it has justifiable reasons for conducting the behaviours. Owing to the difficulty plaintiffs typically face in judi - cial practice when proving that the defendant holds a dominant market position, the Antitrust Judicial Inter - pretation stipulates that plaintiffs only need to bear the initial burden of proof to balance the evidential burden. According to Article 29 of the Antitrust Judi - cial Interpretation, unless there is sufficient evidence to the contrary, the court may preliminarily determine that the defendant holds a dominant market position based on factors such as market structure and com - petitive landscape if the plaintiff provides evidence showing that the defendant meets any of the following conditions. • The defendant maintains a price significantly higher than the competitive market level for an extended
67 A NTITRUST LI T IGATI O N 2026
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