In recent years, there is an increasing awareness among companies to notify the concentration of business operators before the closing of transaction to ensure the antitrust compliance. By summarizing and analyzing related merger control data of the first quarter in 2016, we hope the below article could provide an overview of the recent merger control enforcement in China.
According to the notice published on official website of Ministry of Commerce of P.R.C. (“MOFCOM”) on April 6, MOFCOM has cleared 81 cases without imposing additional conditions during the first quarter of 2016. The number of cases is increased by 30.6%, when compared with the number of cases cleared during the same period of 2015.
Actually, it seems that the introduction of simplified procedure does help enhance the efficiency of case review. In terms of simplified procedure, the agency accepted 64 cases under the simplified procedure within the first quarter of 2016. Comparing with the 59 cases accepted under the simplified procedure during the first quarter of 2015, the number of cases is increased by 8.47%.
No remedy was imposed on cases cleared within 2016 up to the present. While the merger filing application rises every year, the trend of cases imposed with remedies going lower could be caused by different reasons. One of such reasons could be that market players’ awareness on merger control is improving and they are trying to avoid proposing transactions which would lead to remedies. Table 1 below shows ratio of cases cleared without any conditions imposed from 2008 to 2015.
Meanwhile, no case was denied within 2016 up to the present. For the last few years since the enactment of Anti-Monopoly Law (the “AML”) in 2008, there have been only 2 cases which are denied by MOFCOM. Compared to the 1385 accepted cases since the enactment of the AML, the denial rate is 0.14%, which is at the same level of the other major merger control jurisdictions. Table 2 below shows cases cleared with remedies and cases denied yearly from 2008 to 2015.
According to public available information, up to January 2016, MOFCOM has received 56 complaints of non-filings with substantial evidence. 32 investigations were initiated and 24 have been closed. MOFCOM so far has sanctioned 15 cases, of which 9 were penalized in 2015. From the above statistics, the agency has sent a clear message that they’ve imposed harsher punishment on failure to file a notification requested by relevant regulation. Meanwhile, it can be seen that competitors monitor each other more intensively these days, which poses a stringent compliance requirement for companies.
To conclude, in the first quarter of 2016, the rate of simplified procedure acceptance increases compared to the first quarter of 2015. Also 81 cases were cleared while no cases were imposed with remedies nor denied. Meanwhile, the agency is still keeping close attention to failure to file.