Jurisdiction - China
Reports and Analysis
China – Recent Developments In Merger Control.

9 May, 2014

 

 

On 18 April, the Anti-Monopoly Bureau (AMB) of the Chinese Ministry of Commerce (MOFCOM) published the (Provisional) Guidelines on the Notification of Simple Cases (Guidelines). The Guidelines are supporting procedural rules for the Interim Provisions on Simplified Merger Notification (Interim Provisions) which were issued by MOFCOM and came into effect on 12 February. The Interim Provisions and Guidelines are intended to help MOFCOM fast track its review of mergers.


The Guidelines set out the materials required to make a simple case notification and the process for assessing such notifications. Whilst the notifying party is still required to prepare and submit a public notice form, similar to the one required for a standard notification, it is not necessary for the notifying party to provide certain categories of information, including detailed explanations of the structure of supply and demand on the markets. 


The notifying party is, however, required by MOFCOM to demonstrate that the concentration qualifies for review as a simple case. There are six criteria contained in the Interim Provisions and the notifying undertaking must show that it meets one of the criteria. The criteria include market thresholds; a concentration may be considered a simple case where there is a combined market share of less than 15 per cent for a horizontal merger, or where market shares in vertically related markets are below 25 per cent. A concentration may also be a simple case if there is no China nexus or if there is simply a strengthening of control over a joint venture.


Although there is no mandatory requirement to pre-notify MOFCOM of the merger (as there is with a standard case), the Guidelines provide for an initial period of review to assess the issue of eligibility. MOFCOM may then decide to accept or revoke an application for designation as a simple case.


During the initial review period, the completed public version of the simplified form is published on the MOFCOM website, and there is a 10-day period for third parties to comment on the issue of eligibility. Third parties may submit their comments on eligibility to MOFCOM in writing, accompanied by supporting evidence. In case any third party concerns are raised, MOFCOM will independently verify such concerns and contact the notifying parties for discussions. 


In the event that a notification is not accepted as a simple case or the AMB revokes the simple case designation, the case will be reviewed by MOFCOM under the standard notification regime.


In another development, from 1 May penalty decisions taken for failure to notify concentrations will be made public on MOFCOM’s website. MOFCOM has also set up a telephone line for whistle-blowers. In practice, MOFCOM has already taken a number of administrative penalty decisions against undertakings for failure to notify concentrations. However, its position to date has been that the decisions would only be made public if the relevant undertakings chose to publish them. The result is that no administrative penalty decisions have been made public to date.

 

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For futher information, please contact:

 

Nigel Parr, Partner, Ashurst
nigel.parr@ashurst.com  

 

Mats Johnsson, Partner, Ashurst
mats.johnsson@ashurst.com 

 

Ross Mackenzie, Partner, Ashurst
ross.mackenzie@ashurst.com 

 

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