By Susan Ning Kate Peng Gao Sibo and Zhang Kai King & Wood Mallesons’ Commercial & Regulatory goup
On 16 November 2016, the State Administration for Industry and Commerce of the People’s Republic of China (“SAIC”) published its administrative penalty decision to fine Tetra Pak (“TP”) for abuse of dominant market
By Susan Ning, Kate Peng and Ying Zhu King & Wood Mallesons’ Commercial & Regulatory Group
O
n December 8th 2015, the State Administration for Industry and Commerce (SAIC) publicized on its website Guangdong Administration for Industry and Commerce (AIC)’s decision in relation to the boycott investigation into Guangzhou Panyu Animation Association (GAGA). This is the very first investigation that focuses on a boycott agreement. In previous investigations where boycotts were identified, there were always other anti-competitive agreements involved and boycott agreements were not identified as the target violations that were subject to fines.
Here we introduce the GAGA investigation and some previous boycott-related investigations. We then present a short guide to practices that may constitute boycott agreements identified by the authorities.
Continue Reading First Boycott Decision: Be Careful with Concerted Exclusive Dealing
On 4 November 2014, the State Administrative for Industry and Commerce (“SAIC”) published a decision in which it found that the Pizhou branch of the Xuzhou City Tobacco Corporation (the “Pizhou Tobacco Branch”) had abused its dominant position in the tobacco wholesale distribution market by treating customers of equal standing in a discriminatory manner. The SAIC found that the Pizhou Tobacco Branch had violated Article 17 of the PRC Anti-Monopoly Law (the “AML”), which prohibits business operators in a dominant market position from engaging in abusive conduct that eliminates or restricts competition, and it imposed a fine of RMB 1.7 million.
We set out in this article some points that are of particular relevance to undertakings subject to the jurisdiction of the AML in evaluating the legal risks of conduct which may constitute an abuse of a dominant market position.
Continue Reading SAIC’s First Decision on Discriminatory Treatment
By Susan Ning, Hazel Yin and Yunlong Zhang
The year 2012 marks the fifth year of the enactment and implementation of China’s Anti-Monopoly Law (“AML”). Over the past year, we have witnessed substantial progress of the merger control regime and antitrust administrative investigations, in particular in the area of cartel investigations. With the promulgation of judicial interpretation of the Supreme People’s Court, antitrust civil litigations are also picking up. As the Year of Dragon is coming to an end, we present this article with an overview of how the AML has been implemented in the past year, together with our observations.
I. Merger Control
The Ministry of Commerce (“MOFCOM”), the authority in charge of merger control review, maintained a similar caseload in 2012 compared to 2011 and has been gradually establishing its international reputation as one of the most important antitrust authorities.
Continue Reading The Anti-Monopoly Law of China: What We Have Seen in 2012?
By Susan Ning, Kate Peng and Yunlong Zhang
On December 4th and 5th, 2012, the first China Competition Policy Forum (the “Forum“) was held in China University of Political Science and Law. The Forum was sponsored by the expert advisory group of the Anti-monopoly Commission of the State Council. The Directors-General of the three enforcers under the Anti-Monopoly Law (the “AML“), i.e. the Ministry of Commerce (“MOFCOM“), the National Development and Reform Commission (“NDRC“) and the State Administration for Industry and Commerce (“SAIC“) attended the Forum and introduced the latest development of their AML enforcement activities.1
According to Director-General Shang Ming (尚明) of the Anti-Monopoly Bureau of MOFCOM, up to September 30, 2012, a total of 622 merger notification filings were received by MOFCOM, among which 562 were accepted and 510 were closed. Amongst the cases having been closed, only 1 case was rejected (i.e., Coca Cola’s acquisition of Hui Yuan) and 15 cases were cleared with conditions. Mr. Shang mentioned the publication of 458 unconditionally approved cases in November this year2, and indicated that MOFCOM would regularly summarize and release the unconditionally cleared cases in the future.
By Susan Ning, Sun Yiming and Kate Peng
On the International Symposium on Controversial Issues regarding Chinese AML Enforcement held in Hangzhou on Monday this week, both the National Development and Reform Commission (“NDRC”) and the State Administration for Industry and Commerce (“SAIC”) announced that they will increase the transparency of their enforcement actions under the AML.
NDRC and SAIC are the regulators for anti-monopoly conducts in China. The powers are divided between the two authorities in the way that NDRC is responsible for price-related monopoly conducts, and SAIC is responsible for non-price related monopoly conducts.Continue Reading Chinese Antitrust Regulators Vow to Increase Transparency
By Susan Ning and Hazel Yin
August 1, 2012 marks the fourth anniversary of China’s Anti-Monopoly Law (“AML”). 1 With only 57 articles, the AML introduces a series of new regimes governing not only transactions but also day-to-day operations of domestic and foreign companies. This article presents an overview of how the AML has been implemented so far, with particular focus on the latest development, and where it may go in the near future.
Merger Control
The Ministry of Commerce (“MOFCOM”) is responsible for reviewing concentration of undertakings that trigger a certain turnover thresholds.
Continue Reading China’s Anti-Monopoly Law: Retrospect and Prospect on the Fourth Anniversary
作者：宁宣凤 尹冉冉 金杜律师事务所反垄断组
至2012年8月1日，《中华人民共和国反垄断法》（以下简称《反垄断法》）实施已满四年。1虽然仅有57条，但《反垄断法》确立了一系列崭新的制度，其适用对象不仅包括国内公司，也包括境外企业，适用范围不仅涵盖公司的日常运营，也包括公司间的交易行为。本文简要回顾《反垄断法》四年的实施情况，并对其实施趋势予以展望。
一、合并控制
经营者集中在达到一定营业额标准后，需提交商务部进行经营者集中的反垄断审查。自2008年8月1 日以来，商务部累计审查逾450起交易，其中95%以上的交易获得无条件批准。截至2012年8月1日，商务部已附条件批准14起交易，禁止1起（可口可乐收购汇源）。Continue Reading 中国反垄断法实施四周年回顾与展望
By Susan Ning, Liu Jia and Kate Peng
It is generally known that the antitrust enforcement powers are shared by three government authorities in China: the Ministry of Commerce (“MOFCOM”), which is responsible for merger control, the National Development and Reform Commission (“NDRC”), which is responsible for price-related monopoly conducts, and the State Administration for Industry and Commerce (“SAIC”), which is responsible for non-price related monopoly conducts. Compared to the former two authorities, SAIC keeps a relatively low profile on its antitrust enforcement actions.
On July 11, Director General of the Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau of SAIC (“AMAUCEB”), Ms. Ren Airong (任爱荣) made a speech at a conference and introduced the fruits of antitrust enforcement by SAIC since the Anti-Monopoly Law (“AML”) came into effect on August 1, 2008. Continue Reading A General Picture of SAIC’s Antitrust Enforcement
自《中华人民共和国反垄断法》（“《反垄断法》”）实施以来，作为反垄断执法机构的国家工商行政管理总局（“国家工商总局”）和国家发展和改革委员会（“国家发改委”）已经分别在其职权范围内就一些经营者涉嫌垄断的行为进行了调查，并对部分行为实施了处罚。请参见”First Public Enforcement Decision by SAIC against concrete manufacturers（国家工商总局首个公开处罚决定针对混凝土生产企业）”、”Earlier Rumor Confirmed: China Telecom and China Unicom under Antitrust Investigation（早前传闻被确认——中国电信和中国联通接受反垄断调查）”、”NDRC Fined Two Pharmaceutical Companies for Abusive Conducts（国家发改委对两家制药公司垄断行为进行处罚）”以及”Price Related Breaches of the AML and the Price Law – How Many Public Cases Have There Been?（与价格有关的垄断行为以及价格法——目前有多少公开案例？）”等相关文章。
根据《反垄断法》第46条和第47条，如果经营者达成并实施垄断协议，或滥用市场支配地位，反垄断执法机构可以作出以下处罚决定：
Continue Reading 反垄断处罚行政复议常见问题解答
