China News Service, November 28 - The "Anti-monopoly Review Measures for Concentration of Undertakings" was passed at the 26th executive meeting of the Ministry of Commerce on July 15, 2009. Minister of Commerce Chen Deming recently signed an order to announce it, and this method will be implemented from January 1, 2010.
Review Measures for Concentration of Operators
Article 1: In order to standardize the anti-monopoly review work for concentration of operators and clarify the anti-monopoly review procedures for concentration of operators, based on the "Anti-monopoly Law of the People's Republic of China" (hereinafter referred to as the "Anti-monopoly Law"), these measures are formulated.
Article 2: The Ministry of Commerce is the law enforcement agency responsible for reviewing anti-monopoly cases involving concentration of operators, undertaking the specific law enforcement work of accepting and reviewing declarations of concentration of operators.
Article 3: After the Ministry of Commerce has filed a case but before making a review decision, if the declarant requests to withdraw the declaration of concentration of operators, a written application should be submitted with reasons stated. Except for the case of abandoning the concentrated transaction, the withdrawal of the declaration shall be subject to the consent of the Ministry of Commerce.
If the declaration of concentration of operators is withdrawn, the review procedure will terminate. The consent of the Ministry of Commerce to withdraw the declaration does not constitute approval of the concentration.
Article 4: During the review process, the Ministry of Commerce encourages the declarant to voluntarily provide relevant documents and materials that may help in the review of the concentration of operators and the making of decisions as early as possible.
Article 5: During the review process, the operators involved in the concentration may make written statements and defenses to the Ministry of Commerce through letters, faxes, etc., and the Ministry of Commerce shall listen to the parties' statements and defenses.
Article 6: During the review process, the Ministry of Commerce may solicit opinions from relevant government departments, industry associations, operators, consumers, and other organizations or individuals as needed.
Article 7: During the review process, the Ministry of Commerce may decide to hold a hearing actively or upon request of relevant parties, conduct investigations, and hear opinions from all relevant parties. The Ministry of Commerce shall notify the parties participating in the hearing in writing in advance. If the parties participating in the hearing wish to submit written opinions, they must submit them to the Ministry of Commerce before the hearing.
The Ministry of Commerce may invite representatives of the operators involved in the concentration and their competitors, upstream and downstream enterprises, and other related enterprises to attend the hearing, and may also invite experts, representatives of industry associations, representatives of relevant government departments, and consumer representatives as appropriate.
Participants in the hearing shall attend the hearing on time, comply with the hearing procedures, and follow the arrangements of the hearing chairman.
If participants in the hearing consider it necessary to make separate statements due to commercial secrets or other confidentiality factors, separate hearings can be arranged; when separate hearings are arranged, the content of the hearing shall be handled according to relevant confidentiality regulations.
Article 8: The hearing shall proceed in accordance with the following procedures:
(1) The hearing chairman announces the start of the hearing and reads out the hearing discipline;
(2) Verify the parties participating in the hearing;
(3) Parties make statements on the hearing content;
(4) The hearing chairman questions the relevant parties about the hearing content;
(5) The hearing chairman announces the end of the hearing.
Article 9: In the preliminary review stage, the Ministry of Commerce shall make a decision within the time limit stipulated in Article 25 of the Anti-monopoly Law as to whether further review is required. If the Ministry of Commerce decides not to conduct further review, it shall notify the declarant in writing; if it considers it necessary to conduct further review, it shall make a decision to conduct further review and notify the declarant in writing.
If the Ministry of Commerce makes a decision not to conduct further review or fails to make a decision within the time limit, the operators involved in the concentration may implement the concentration.
Article 10: In the further review stage, if the Ministry of Commerce believes that the concentration of operators has or may have the effect of excluding or restricting competition, it shall inform the operators involved in the concentration of its objections and set a reasonable period for the operators involved in the concentration to submit written rebuttals.
The written rebuttal opinion of the operator involved in the concentration shall include relevant facts and reasons and provide corresponding evidence. If the operator involved in the concentration fails to submit a written rebuttal within the time limit, it shall be deemed to have no objection to the objection.
Article 11: During the review process, in order to eliminate or reduce the effect of exclusion or restriction of competition that the concentration of operators may have, the operators involved in the concentration may propose restrictive conditions to adjust the concentration transaction plan.
Depending on the specific circumstances of the concentration transaction, the restrictive conditions may include the following types:
(1) Structural conditions such as divesting part of the assets or businesses of the operators involved in the concentration;
(2) Behavioral conditions such as opening up infrastructure such as networks or platforms by operators involved in the concentration, licensing key technologies (including patents, proprietary technology, or other intellectual property), and terminating exclusive agreements;
(3) Comprehensive conditions combining structural and behavioral conditions.
Article 12: Restrictive conditions proposed by operators involved in the concentration should be able to eliminate or reduce the exclusionary or restrictive competitive effects that the concentration of operators may have, and should be realistic and feasible. The written text of the restrictive conditions should be clear and explicit so as to fully evaluate their effectiveness and feasibility.
Article 13: During the review process, in order to eliminate or reduce the exclusionary or restrictive competitive effects that the concentration of operators may have, both the Ministry of Commerce and the operators involved in the concentration may propose modifications to the restrictive conditions.
Article 14: The Ministry of Commerce shall make a decision to prohibit or not prohibit the concentration of operators within the time limit stipulated in Article 26 of the Anti-monopoly Law and notify the declarant in writing. For concentrations of operators that are not prohibited, the Ministry of Commerce may decide to attach restrictive conditions to reduce the adverse impact of the concentration on competition. Before the Ministry of Commerce makes a further review decision, the operators involved in the concentration shall not implement the concentration.
If the Ministry of Commerce makes a decision not to prohibit the concentration of operators or fails to make a decision within the time limit, the operators involved in the concentration may implement the concentration.
Article 15: For concentrations of operators approved with restrictive conditions, the Ministry of Commerce shall supervise and inspect the fulfillment of the restrictive conditions by the operators involved in the concentration, and the operators involved in the concentration shall report the implementation of the restrictive conditions to the Ministry of Commerce within the specified time limit.
If the operators involved in the concentration fail to fulfill the defined obligations under the restrictive conditions, the Ministry of Commerce may order them to correct within a time limit; if the operators involved in the concentration fail to correct within the specified time limit, the Ministry of Commerce may handle it in accordance with the relevant provisions of the Anti-monopoly Law.
Article 16: The Ministry of Commerce, the declarant, and other entities and individuals bear the obligation to keep confidential business secrets and other information known during the review of the concentration of operators.
Article 17: These measures will be implemented from January 1, 2010.
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