By Susan Ning and Hazel Yin
On November 16, 2012, the Ministry of Commerce (“MOFCOM“) released the latest data of unconditionally approved notifications of concentrations, including the total number and the list of all transactions with the name of each transaction and the undertakings concerned. According to an earlier piece of press release, MOFCOM will disclose information of unconditionally cleared cases on a quarterly basis1.
From August 1, 2008 when the Anti-monopoly Law (“AML”) became effective to September 30, 2012, MOFCOM cleared 474 cases, of which 458 cases were cleared unconditionally2. Of all the cases, manufacturing, mining, energy, and transportation are the industries where the majority of notifications occur.
Under the AML, MOFCOM is only obligated to disclose its decision to prohibit or attach conditions to a transaction. Publication of unconditionally cleared cases is yet another effort MOFCOM made to increase its transparency. Ever since the AML was enacted, MOFCOM has adopted a series of regulations and guidelines to increase transparency and legal certainty. For example, in 2011, MOFCOM promulgated the Provisional Rules on Assessment of Competitive Effects of Concentration of Business Operators, which sets out the basic methodology it applies to evaluate the competitive effects of concentrations of undertakings3. Earlier this year, MOFCOM revamped its template notification form, which includes welcome clarifications on a few important issues, such as how to identify “undertakings concerned”4. Measures that are in the pipeline include the rules on merger remedies and on simplified review procedures.
Set forth below is some historic data on a yearly basis5:
Up till now, the total number of conditionally cleared cases amounts to fifteen, with the addition of the conditional approval of Wal-Mart’s acquisition of Yihaodian in August 2012. We have undertaken more than 80 unconditionally cleared merger control filings and 3 conditionally cleared filings. We have also been involved in another 3 conditionally cleared filings.
1. See The Anti-monopoly Bureau Enhances Disclosure of Notifications of Concentration of Undertakings, available at http://fldj.mofcom.gov.cn/aarticle/xxfb/201211/20121108436852.html (in Chinese).
2.The list of unconditionally cleared cases is available at http://fldj.mofcom.gov.cn/aarticle/zcfb/201211/20121108437868.html (in Chinese).
3.For a more thorough analysis of the regulation, please refer to our previous article entitled MOFCOM’s New Rules Shed Light on Its Competitive Assessment Process.
4.For a more thorough analysis of the new notification form, please refer to our previous article entitled MOFCOM New Merger Filing Form-Clarification on Major Filing Issues.
5.The data was released by Mr.Shang Ming, Director General of the Anti-monopoly Bureau at the Asia Competition Association (ACA)2012 Annual Conference held in Beijing on October 21,2012.