Abstract
Since the implementation of the Anti-Monopoly Law in 2008, China has implemented a review system for the eligible concentration in which structural remedies or behavioral remedies are imposed when certain concentrations are reached by way of restrictive conditions. This is a common principle in almost every jurisdiction, but China’s practice shows that behavioral remedies are used more often than structural remedies, which is different from EU or US practice. Based on the interpretation of the Chinese system and the logic of remedy rules, this article analyses all the remedy cases in China, and makes suggestions for improvement.
This article is a result of research under the 2018 Beijing Social Science Fund’s major project “Research on the Merger remedies from the View of antitrust” (project number: 18FXB013).
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Notes
- 1.
An exception is Hong Kong, where, in principle, no deal other than those in the field of telecommunications is subject to operator concentration review.
- 2.
The thresholds for regulating the mergers among the undertakings are different among various jurisdictions, dynamic or static. Even though taking the sales in the previous year as the criterion, the baselines vary significantly among the jurisdictions. Although this is an important consideration in amending the Anti-monopoly Law in China, it is not of focus of this Paper, so it is not discussed in detail herein.
- 3.
See Wu and Liu (2012), p. 430.
- 4.
- 5.
See Article 3 of Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation) promulgated by MOFCOM.
- 6.
These three are ministry-level administrative agencies. Each has a broad range of mandates in performing other functions. Antitrust reviews and investigations are carried out by their respective antimonopoly bureaus, i.e., the Price Supervision and Antimonopoly Bureau of NDRC, the Antimonopoly Bureau of MOFCOM, and the Antimonopoly and Anti-Unfair Competition Bureau of SAIC. As is commonly done in antitrust writings relating to China, we use NDRC, MOFCOM and SAIC as the acronyms for their antitrust enforcement bureaus.
- 7.
This Figure is drawn from The US-China Business Council’s report, “Competition Policy and Enforcement in China,” (2014), p. 4.
- 8.
See “Interim Measures for Investigating and Handling the Failure to Report the Concentration of Undertakings,” (2011).
- 9.
See “Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation)” (2014).
- 10.
MOFCOM Announcement No. 77 of 2009.
- 11.
MOFCOM Announcement No. 53 of 2010.
- 12.
Qiu (2009), pp. 96–100.
- 13.
MOFCOM Announcement No. 82 of 2009.
- 14.
See MOFCOM Announcement No. 64 of 2015.
- 15.
See MOFCOM Announcement No. 22 of 2009.
- 16.
See MOFCOM Announcement No. 46 of 2014.
- 17.
The Ministry of Commerce issued three administrative penalty decisions, including two against Western Digital, i.e., S.F.H [2014] No.786 and S.F.H [2014] No.787, and one against Thermo Fisher Scientific, i.e., S.F.H [2018] No.11.
- 18.
See Easterbook (1984), pp. 1–40.
- 19.
Hylton (2009), p. 105.
- 20.
See Article 5 of Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation): The MOFCOM shall, in a timely manner, put forward that a concentration might preclude or restrict competition and give the reasons. Based on this, the reporter may propose additive restrictive conditions.
- 21.
Li and Ma (2016), pp. 37–39.
- 22.
- 23.
Merger remedies review project: report for the fourth ICN annual conference (2005).
- 24.
See The Ministry of Commerce of the People’s Republic of China, Article 3 of the Provisions on Imposing Restrictive Conditions on the Concentration of Undertakings (for Trial Implementation).
- 25.
European Commission, Commission Notice on remedies acceptable under Council Regulation (EC) No. 139/2004 and under Commission Regulation (EC) No. 802/2004, OJ C 267, 22, October 2008.
- 26.
MOFCOM Announcement No. 41 of 2015.
- 27.
See U.S. Department of Justice Antitrust Division, Antitrust Division Policy Guide to Merger Remedies, October 2004, pp. 22–26.
- 28.
See U.S. Department of Justice Antitrust Division, Antitrust Division Policy Guide to Merger Remedies, June 2011, pp. 12–18.
- 29.
Bureau of Competition of the Federal Trade Commission, Negotiating Merger Remedies, https://www.ftc.gov/system/files/attachments/negotiating-merger-remedies/merger-remediesstmt.pdf.
- 30.
See U.S. Department of Justice Antitrust Division, Antitrust Division Policy Guide to Merger Remedies, October 2004.
- 31.
Ibid.
- 32.
See Fazio (2013), pp. 5–7.
- 33.
See Makan Delrahim (2018), p. 7.
- 34.
See Wang et al. (2013), p. 10.
- 35.
See Commission Notice on Remedies acceptable under Council Regulation (EEC) No. 4064/89 and under Commission Regulation (EC) No. 447/98, 2001/C 68/03; No. 139/2004 and under Commission Regulation (EC) No. 802/2004, OJ C 267, 22 October 2008.
- 36.
See Sorinas and Jorns (2009), pp. 9–13.
- 37.
Competition Commission (2008), Merger Remedies: Competition Commission Guidelines, pp. 14–15.
- 38.
See OECD (2011), p. 207.
- 39.
See Han (2014), p. 192.
- 40.
See OECD(2011), p. 46.
- 41.
See Baer (1999), p. 4.
- 42.
See Rey (2004), pp. 129–134.
- 43.
See Papandropoulos and Tajana (2006), p. 443.
- 44.
See U.S. Department of Justice Antitrust Division (2011) Antitrust Division Policy Guide to Merger Remedies, pp. 5–7.
- 45.
See Dong (2008), p. 63.
- 46.
See Wu and Liu (2012), p. 437.
- 47.
MOFCOM Announcement No.43 of 2015.
- 48.
See Cary and Bruno (1997), p. 875.
- 49.
See Articles 46 and 47 of Anti-Monopoly Law of China currently in effect.
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Zhang, C. (2021). The Amendment of Anti-Monopoly Law of Merger Remedies: Based on the Empirical Analysis in China. In: Lee, J. (eds) Takeover Law in the UK, the EU and China. Springer, Cham. https://doi.org/10.1007/978-3-030-72345-3_8
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