By Liu Cheng, Simon Holmes and Michael Reiss King & Wood Mallesons
Ch
inese State-owned enterprises (SOEs) acquiring businesses or entering into joint ventures with other parties may unexpectedly trigger an EU merger filing. This was clarified by the European Commission’s decision clearing the UK joint venture between China General Nuclear Power Corporation (CGN)
作者：刘成 Simon Holmes Michael Reiss King & Wood Mall
中国国有企业在进行境外并购或与其他企业进行合资合作时，可能将面临更高的欧盟委员会（“欧委会”）合并审查要求。欧委会在2016年4月26日发布的中国广核集团有限公司（“中广核”）与法电集团（“法电”）在英国设立合营企业的批准决定[1]中，对相关问题进行了说明。
值得中国国有企业关注的是，欧委会在判断对一项交易是否具有管辖权及进行竞争评估时，不仅会考虑直接参与交易的国有企业，同时也会对其他国有企业的营业额和经营活动进行审查。
因此，中国国有企业参与的交易将更容易引起欧盟的合并审查。同时，这也意味着中国国有企业需向欧委会提供大量的信息，导致申报前的商谈期间更为耗时（否则的话，交易进入第二阶段审查的风险将进一步提高）。
任何需向欧委会提交申报的交易必须得到欧委会批准决定方可实施集中。即使交易不存在竞争问题，欧委会也会对应报未报的企业处以罚款。罚款数额最高可达申报方在全球范围集团营业额的10%。
在欧委会合并审查过程中，对其他非交易方的国有企业的审查在确立管辖权和实质审查的两个阶段中尤为关键。
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By Susan Ning, Cheng Liu, Hazel Yin, Ruohan Zhang King & Wood Mallesons’ Commercial & Regulatory Group
On
M
arch 23rd, 2016, after several rounds of internal inquiries, Antitrust Guidelines for Automotive Industry (Draft for Comments) (hereinafter the “Consultation Draft”), drafted by the National Development and Reform Commission (“NDRC”) together with relevant authorities under the authorization by the State Council Anti-Monopoly Commission, was open for public comments. As the first comprehensive industrial antitrust guideline in China, the publication of the Consultation Draft stands as a milestone.
Continue Reading Highlights on Antitrust Guidelines for Automotive Industry — Overview and Frequently Asked Questions
by Susan Ning, Cheng Liu, Hazel Yin, Yun Bi King & Wood Mallesons’ Commercial & Regulatory Group
In recent years, Chinese authorities have dealt with many antitrust cases for resale price maintenance (“RPM”), and such investigations have spread into various industries, e.g. milk powder, eye glasses, alcohol, automotive industry, etc. Especially in the automotive industry, since 2014, some well-known branded auto suppliers have been fined for restricting their distributors’ resale price. On March 23, 2016, the National Development and Reform Commission (“NDRC”) published the consultation draft of the Antitrust Guidelines for Automotive Industry (“Consultation Draft”) to invite public comments. The Consultation Draft particularly provides detailed explanations on RPM and provides practical guidance for both companies and the Anti-Monopoly Enforcement Agencies (“AMEAs”).
Continue Reading Highlights on Antitrust Guidelines for Automotive Industry– Clarifying the Enforcement on RPM
By Susan Ning, Cheng Liu, Hazel Yin, Yumeng Li King & Wood Mallesons’ Commercial & Regulatory Group
SummaryAuto suppliers often impose non-price restrictions, such as territorial restrictions and customer restrictions, on their distributors. In previous penalty decisions of Anti-Monopoly Enforcement Authorities (“AMEAs”), non-price restrictions in association with resale price maintenance may be found violating Article 14(1) or (2) of the Anti-Monopoly Law (“AML”). However, AMEAs have yet punished any standalone non-price restriction under Article 14(3) of the AML.
Continue Reading Highlights on Antitrust Guidelines for Automotive Industry– Vertical Non-price Restrictions Face Potential Challenges
By Susan Ning, Cheng Liu, Hazel Yin, Lingbo Wei, Shenglan Liu King & Wood Mallesons Commercial & Regulatory Group
On
March 23, 2016, China’s National Development and Reform Commission (“NDRC”) published the draft of the State Council Anti-Monopoly Commission’s Antitrust Guidelines for Automotive Industry (the “Consultation Draft”) and invited comments from the public.
There have been quite a few antitrust investigations in China’s automotive industry in recent years. For the automotive aftermarket, auto suppliers in China have long been criticized for imposing restrictions on spare parts suppliers, distributors and repairers, which leads to the exclusive supply of original spare parts in the aftermarket as well as the foreclosure of repair technical information. Customers have been worried about the high parts-to-whole ratio and the unavailability to after-sale services.
Continue Reading Highlights on Antitrust Guidelines for Automotive Industry — Antitrust Issues in Automotive Aftermarket
By Susan Ning, Zhifeng Chai, Weiqing Qiu and Lingbo Wei King & Wood Mallesons’ Commercial & Regulatory Group
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.
Continue Reading A Review of MOFCOM’s Merger Control Enforcement in the First Quarter of 2016
By Susan Ning, Cheng Liu, and Hazel Yin King & Wood Mallesons’ Commercial & Regulatory Group
On March 23, China’s National Development and Reform Commission (“NDRC”) published the draft Antitrust Guidelines for the Auto Industry (“Draft Guidelines”), and invited public comments by April 12, 2016. NDRC is entrusted by the State Council Antimonopoly Commission to take the lead in drafting these Draft Guidelines. Before this draft on March 23, it had circulated several versions among a smaller group and received comments from major market players, industry associations, consumer associations, academic experts and legal practitioners.
Continue Reading NDRC Invites Comments on Draft Antitrust Guidelines for Automotive Industry
By Susan Ning, Cheng Liu, Weiqing Qiu and Yun Bi King & Wood Mallesons’ Commercial & Regulatory Group
On October 12, 2015, the Central Committee of the Communist Party of China and the State Council issued the Several Opinions on Promoting the Price Mechanism Reform (“Opinions”). The Opinions call for strengthening the market price supervision and the antitrust enforcement, and target to establish a scientific, orderly, and transparent price supervision regime and antitrust enforcement mechanism by 2020.
Following the Opinions by the central government, many provincial governments (such as provinces of Henan, Hebei, Hunan, Hubei, Inner Mongolia, etc.) have recently issued their own guidelines to promote price mechanism reform and enhance the antitrust enforcement.
Continue Reading Local Government in China to Enhance Antitrust Enforcement
By Susan Ning, Cheng Liu and Shenglan Liu King & Wood Mallesons’Commercial & Regulatory Group
C
hina’s top antitrust authority, the Anti-monopoly Commission (“AMC”) of the State Council is to issue the integrated IPR antitrust guidelines. AMC has entrusted three antitrust enforcement agencies, the National Development and Reform Commission (“NDRC”), the State Administration of Industry and Commerce (“SAIC”) and the Ministry of Commerce (“MOFCOM”), and the State Intellectual Property Office (“SIPO”) with the task of drafting antitrust guidelines on intellectual property rights (IPRs). It is reported that these agencies are finalizing their respective draft guidelines and will submit the drafts to AMC by the end of March 2016. Since AMC is responsible for coordinating antitrust policies in China, it will take the lead to consolidate the said four draft IP guidelines and issue an integrated one.
Continue Reading China’s State Council to announce integrated IPR antitrust guidelines
