User Name:     Password:        Join Us
  • 1
  • 2
  • 3
  • 4
  • 5
▪ China Issued Export Control Law
▪ China Issued Its List of Unreliable Entities
▪ Demystify Corporate Social Credit System in China
▪ China is deploying “Operation Skynet” to further “Fox Hunt”
▪ China is to award whistleblowers heavily – foreign companies are more vulnerable t
▪ 130 Chinese headhunters arrested, involving breach of 200 million personal info
▪ Corporate Compliance Programs Evaluation Issued by US DOJ (Chinese Translation)
▪ The prospect is promising to commercialize Level-3 autonomous driving in China
▪ Intelligent and digital infrastructures are scheduled to accompany automatic vehic
▪ Will China illegalize VIEs?
▪ You cannot miss the gold rush under China's new Foreign Investment Law
▪ Data must stay in China to get classified protection under Cyber Security Law?
▪ China is to fast-track law-making in autonomous driving
▪ What compliance obligations to meet to transfer data from within China?
▪ Chinese government uses digital forensics technology to dig bribery evidence
▪ A Chinese medical device distributor fined CNY 50,000 for bribing with Moutai
▪ How would Chinese E-commerce Law affect you (1)?
▪ Conflict between the culture and the Party’s rules: $70 gift money got a director
▪ "Excessive Pricing" from perspective of Competition Law
▪ Does China prohibit cross-border transfer of scientific data?
▪ Hypermarket Caesar jailed for ten years for giving “reward for go-between”
▪ How is environmental protection tax collected in China?
▪ China Redefined Bribery Anticompetitive in Nature
▪ China is to amend its Constitution
▪ Chinese government vowed to crack down on bribe givers more harshly
▪ China has its own Dodd-Frank; the award for whistleblower could be US$ 80K
▪ Chinese government may LIUZHI a suspect of wrongdoing
▪ Cooking clinical trial data is rampant and now criminally punishable in China
▪ 5th Viadrina Compliance Congress
▪ Does a compliance bird eat nothing?
▪ How Are Drugs Being Sold in China Despite the Anti-Corruption Crusading
▪ Chinese whistle-blower lauded while French boss fled out of China
▪ Life Sentence for Deputy Chief Justice of China
▪ Why Is Chinese Anti-bribery Law a Very Important Compliance Obligation?
▪ The Report on Corporate Compliance Management in China (2016)
▪ Use of "predictive coding" in eDiscovery document review…best friend or job replac
▪ Civil Fraud v. Criminal Fraud: Criminal Proceedings Not a Silver Bullet to Resolve
▪ Corrupt Chinese drug administrators jailed or executed, whose family members ended
▪ Tone from the middle cannot be ignored
▪ Is bribing a Chinese doctor bribing an FCPA governmental official?
▪ Criminal and Administrative Liability under China's Competition Laws
▪ Model Standards for Trade Association Compliance with China's AML
▪ Double Exposure to Legal Risk Under China's Competition Laws: Comments Upon the Ex
▪ New Privacy Standards for New Data
▪ Chinese Police Are Foxhunting Corrupt Officials
▪ Transfer of Personal Data Overseas from Singapore: Recent Enhanced Provisions
▪ New Guidance on Antitrust Notifications in China
▪ China Issued the Standards on the Quality Management of Using Medical Devices (Dra
▪ China Imposes Harsher Liabilities for Environmental Non-Compliance
▪ GSK Faces Two Corruption Fights in East and West
Home > Anti-Monopoly Law
New Guidance on Antitrust Notifications in China
By The Compliance Reviews | 2014/6/9 16:57:59

On June 6, 2014, the Ministry of Commerce of China issued a new version of Guiding Opinions on the Declaration of Concentration of Undertakings that had been issued previously on January 5, 2009 (the “Guiding Opinions”).  Compared with the old Guiding Opinions, the new Guiding Opinions has some new characteristics as follows:


Control for Concentration

According to the new Guiding Opinions, the control in the concentration of undertakings includes individual control and joint control.  It depends on a lot of legal and factual elements to decide if an undertaking gains control over other undertakings or exert decisive influence over other undertakings by a transaction.  

It is important to look into a concentrating agreement or the articles of association of other undertakings to decide if there is a shift of control, but there are some other factors to double check such as:
-What is the purpose of the transaction and the prospective business plan
-What is shareholding structure before and after a transaction
-What are the items for voting and voting mechanisms of the shareholders meeting and how voting was conducted
-How is the board of directors or the board of supervisors made and what is their voting mechanism
-How are executive managers appointed or dismissed
-What is the relation between shareholders and directors, for example if there are proxy voting rights or persons acting in concert
-If there is any significant business relationship between the concerned undertaking and some other undertakings.

Any undertaking can take control directly or indirectly by an undertaking under its control.
For a newly established joint venture, it is concentration if there are at least two undertakings jointly controlling this joint venture.  It is not a concentration if there is only one undertaking controlling this joint venture individually.


Calculation of Turnover

For a concentration where a seller sells a part or several parts of this undertaking, if the seller does not control over what is sold out, it is unnecessary to calculate the entire turnover of the undertaking.  In other words, as far as this concentration is concerned, it is what this seller sold out is taken into account when calculating the turnover of the transaction.  Therefore, if the seller sells its assets and does not control the assets that were sold, it is the revenue that these assets generated is taken into account to calculate the turnover of the whole transaction.  If a seller sells a part or all parts of the shares of a target company and if the seller does not have any control over the target company after the transaction, it is the revenue that the target company generates is taken into account when calculating the turnover of the concentration.

Pre-notification Inquiry
Any undertaking could make a pre notification inquiry with the MOFCOM regarding a filing or potential filing.  A pre-notification inquiry must be made in writing the fax or email, which shall include the following information regarding the transaction: the basic information of concentrating parties; subject matters of inquiry; the name, nationality, enterprise and the titles of the person that make such an inquiry; the time proposed to discuss on; the contact person and their contact details.
The transaction subject to inquiry must be real and relatively certain, and must be directly related with the filing that is made or to be made.
That issues subject to inquiry could include the following:
-Whether a transaction is reportable, which includes weather a transaction is a concentration, and whether the filing criteria have been reached
-What documents and the data are to be filed with MOFCOM
-What are concrete legal and factual questions to raise, including how to determine what is the relevant product market and the relevant geographic market, or if the filing could be made in a simplified way
-What are the filing and examination procedures including when and who to make a filing, the timing and procedure of making such a filing, if it is all right to make a simplified filing. 


Compared with the old Guiding Opinions, the new Guiding Opinions are more practical and guiding-oriented as MOFCOM has absorbed all of the tips and lessons that were accumulated in the past six years since China’s Anti-Monopoly Law took effect as of August 1, 2008.


For the Chinese version of the New Guiding Opinions, please follow the link.



Tweet Like Email LinkedIn
There are no comments for this journal entry. To create a new comment, use the form below.
    Enter your information below to add a new comment.
Email:    (optional)
URL:    (optional)
  Comment Moderation Enabled
Your comment will not appear until it has been cleared by a website editor.
The Compliance Reviews COPYRIGHT © 2013-19 All Rights Reserved. Supported by International Risk and Compliance Association and International Risk and Compliance Institute Limited. 沪ICP备10034943号-8