This country-specific Q&A provides an overview to merger control laws and regulations that may occur in China.
It will cover jurisdictional thresholds, the substantive test, process, remedies, penalties, appeals as well as the author’s view on planned future reforms of the merger control regime.
This Q&A is part of the global guide to Merger Control. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/merger-control-3rd-edition
Merger control is called anti-monopoly review of concentration of business operators in China. It is governed by the Anti-Monopoly Law of the People's Republic of China (“AML”) and relevant regulations and rules, including the Provisions of the State Council on the Thresholds for Declaring Concentration of Business Operators .
According to the Decision of the First Session of the 13th National People's Congress on the Institutional Reform Plan of the State Council (effective date: 03/17/2018), the new established State Administration for Market Regulation (“SAMR”) is responsible for anti-monopoly review of concentration of business operators. Before that, Ministry of Commerce of People’s Republic of China (“MOFCOM”) is the competent authority.
Is mandatory notification compulsory or voluntary?
Notification is compulsory in China if the notification threshold determined by the State Council is met.
Is there a prohibition on completion or closing prior to clearance by the relevant authority? Are there possibilities for derogation or carve out?
Notifiable concentration is prohibited to be closed prior to the clearance by SAMR. In case that business operators close the concentration prior to the clearance, SAMR may instruct them to dispose of their shares or assets, transfer the business or adopt other necessary measures to return to the state prior to the concentration within a specified time limit, and SAMR may impose on them a fine of not more than RMB 500,000.
What types of transaction are notifiable or reviewable and what is the test for control?
Concentration of business operators which meets the thresholds determined by the State Council is notifiable. Concentration of business operators includes the following three types of transaction,
(1) merger of business operators;
(2) control over other business operators gained by a business operator through acquiring their shares or assets; and
(3) control over other business operators or the ability capable of exerting a decisive influence on the same gained by a business operator through signing contracts or other means, including establishment of joint ventures.
As to the test for control, the Guiding Opinions on Declaration of Concentration of Business Operators (“Guiding Opinions), as amended by SAMR in September 2018, provides that control referred above includes sole control and joint control and the determination of control depends on various legal and factual factors, including not only concentration agreements, e.g. share purchase agreement and articles of association of the target business operator, but also other factors like the dispersed ownership of the target business operators which may result in de facto control. The Guiding Opinions set out the following factors that should be taken into account in determining whether one business operator gains the control over another business operator:
(1) purposes of the concentration and future plans;
(2) the equity structure of the said another business operator both before and after the concentration and the changes thereof;
(3) the matters for voting by the general meeting of the said another business operator, and the voting mechanisms, historical attendance and voting records of the general meeting;
(4) the composition and voting mechanisms of the board of directors or the board of supervisors of the said another business operator;
(5) the appointment and removal of the senior management personnel of the said another business operator;
(6) the relationship among shareholders and directors of the said another business operator, e.g. whether proxies are entrusted to exercise voting rights, whether there are parties acting in concert, etc.; and
(7) whether there exists significant business relationship, cooperation agreements, etc. between the business operator and the said another business operator.
In which circumstances is an acquisition of a minority interest notifiable or reviewable?
An acquisition of a minority interest is notifiable if it confers the acquiring party control over the target business operator and meets the notification thresholds. In other words, a test for control (see answers to question 4) is also necessary for an acquisition of a minority interest. In particular, if a party acquiring a minority interest obtains veto rights, at the level of shareholder’s meeting, at the level of board of directors, or otherwise, over strategic commercial behaviors of the target business operator, including but not limited to decisions relating to the latter’s business plan, budget, and appointment and removal of senior management, the party may be considered to obtain sole or joint control over the target business operator.
What are the jurisdictional thresholds (turnover, assets, market share and/or local presence)? Are there different thresholds that apply to particular sectors?
The jurisdictional thresholds are only related to turnovers of the relevant business operators. Where a concentration of business operators reaches any of the following thresholds, the business operators shall file a notification to SAMR:
(1) The total amount of the global turnover realized by all the business operators participating in the concentration during the previous accounting year exceeds RMB10 billion with at least two business operators each achieving a turnover of more than RMB 400 million within China during the previous accounting year; or
(2) The total amount of the turnover within China realized by all business operators participating in the concentration during the previous accounting year exceeds RMB 2 billion with at least two business operators each achieving a turnover of more than RMB 400 million within China during the previous accounting year.
The above thresholds apply to all sectors, although special methodologies of calculation of turnovers apply for business operators in financial sectors, including banking financial institutions, securities companies, futures companies, fund management companies and insurance companies.
How are turnover, assets and/or market shares valued or determined for the purposes of jurisdictional thresholds?
A business operator's turnover shall include the incomes obtained by the business operator from the sales of products and the provision of services in the previous accounting year, net of relevant taxes and surcharges. The turnover "within China" means incomes obtained from the buyers who are located within China. It includes the business operator's export of products or services into China, but excludes its export of products or services from China to other countries or regions. The global turnover includes the turnover within China.
The turnover of a business operator participating in the concentration shall be the sum of the consolidated turnover of all the entities controlled by the ultimate controlling entity of the business operator, excluding the turnovers derived from the internal transactions between the entities controlled by the same ultimate controlling entity.
Specifically, the turnover of an individual business operator participating in the concentration shall be the sum of the turnovers of the following business operators:
(1) the individual business operator itself;
(2) other business operators directly or indirectly controlled by the business operator referred to in Item (1);
(3) other business operators who directly or indirectly control the business operator referred to in Item (1);
(4) other business operators directly or indirectly controlled by the business operators referred to in Item (3); and
(5) other business operators jointly controlled by two or more business operators among those referred to in Item (1) through to Item (4).
It should be added that:
(1) If the individual business operator is jointly controlled by two or more business operators, its turnover shall include the turnovers of all the controlling parties;
(2) The turnover of the individual business operator shall not include the turnover of the business operators that the individual business operator has sold or over which it no longer has controlling power;
(3) Where several individual business operators participating in the concentration jointly control another business operator, or where the business operators participating in the concentration jointly control another business operator with business operators which do not participate in the concentration, the turnover of such an individual business operator participating in the concentration shall include the turnover generated by the jointly-controlled business operator from transactions with third-party business operators, and such turnover shall only be counted once.
Is there a particular exchange rate required to be used to convert turnover and asset values?
In normal circumstances, the average of the central parity rates of the corresponding accounting year published by the People's Bank of China should be used to convert turnover in foreign currency into RMB.
In which circumstances are joint ventures notifiable or reviewable (both new joint ventures and acquisitions of joint control over an existing business)?
Establishment of a new joint venture is considered as concentration of business operators if the joint venture will be jointly controlled by at least two business operators. In such a case, the two or more business operators controlling the joint venture will be considered as the business operators participating in the concentration, and the turnover of each of the them shall be calculated for purpose of determining whether the notification thresholds are met.
An acquisition of joint control over an existing business is also considered as concentration of business operators. For example, a transaction in which company A acquires joint control with Company B over Company C which was solely controlled by Company B is considered as concentration of business operators. In such a case, the turnovers of each of Company A and Company B shall be calculated for purpose of determining whether the notification thresholds are met. For another example, a transaction in which company A and Company B acquires joint control over Company C which was solely controlled by Company D is also considered as concentration of business operators. In this case, the turnovers of each of Company A, Company B and Company C shall be calculated for purpose of determining whether the notification thresholds are met.
Are there any circumstances in which different stages of the same, overall transaction are separately notifiable or reviewable?
Generally, different stages of the same, overall transaction should be treat as one single concentration of business operators, and be notified for once after the concentration agreement is concluded and prior to the implementation of the first stage.
In relation to “foreign-to-foreign” mergers, do the jurisdictional thresholds vary?
The same jurisdictional thresholds apply. That said, “foreign-to-foreign” mergers, e.g. two foreign companies establish a joint venture which will not engage in any economic activity within the territory of China, may qualify as simple cases subject to simplified procedures.
For voluntary filing regimes (only), are there any factors not related to competition that might influence the decision as to whether or not notify?
What is the substantive test applied by the relevant authority to assess whether or not to clear the merger, or to clear it subject to remedies? Are there different tests that apply to particular sectors?
The substantive test is whether the concentration will lead or will likely lead to elimination or restriction of competition. If the answer is affirmative, SAMR shall make a decision to prohibit the concentration. However, if the business operators participating in the concentration can prove that the advantages of the concentration to competition obviously outweigh the disadvantages, or that the concentration is in the public interest, SAMR may decide to approve the concentration with restrictive conditions for lessening the negative impact on competition.
Specifically, the following factors will be taken into consideration by SAMR in review of concentration of business operators:
(1) the market shares of the business operators in a relevant market and their power of control over the market;
(2) the degree of concentration in the relevant market;
(3) the impact of the concentration on assess to the market and technological advance;
(4) the impact of the concentration on consumers and the other relevant business operators concerned;
(5) the impact of the concentration on the development of the national economy; and
(6) other factors which SAMR deems to need consideration in terms of its impact on market competition.
For more details, please refer to Interim Provisions on Assessment of the Impact of Business Operator Concentration on Competition issued by MOFCOM in August 2011.
There are no special tests that apply to particular sectors.
Are factors unrelated to competition relevant?
The substantive test described in the relevant laws and regulations do not allow for non-competition factors to be taken into account.
Are ancillary restraints covered by the authority’s clearance decision?
There are no explicit rules in this regard. Nevertheless, in case of notifications of establishment of joint ventures, other agreements or arrangement, if any, concluded between the parties or their affiliated entities are required to be submitted to SAMR for review. It seems that such agreements or arrangement, which may include restrictions directly related and necessary to the implementation of the concentration, are covered by SAMR’s clearance decision.
For mandatory filing regimes, is there a statutory deadline for notification of the transaction?
There is no specific deadline for notification of the transaction, but the proposed concentration must be notified and cleared before its implementation. Taking the establishment of a joint venture as example, the registration of the joint venture with the industrial and commercial authorities is generally deemed to a sign of the implementation of the concentration. Given that it takes about 2 months to get clearance decisions for a simple case under the simplified procedures, the notification of a simple case should better be made, at the latest, 2 months before the date of implementation. For transactions which do not qualify as simple cases, the notification should be made earlier.
What is the earliest time or stage in the transaction at which a notification can be made?
The notification can be made immediately after the signing of the concentration agreement, such as the shares or assets purchase agreement or joint venture agreement, which requires that the preparation of the notification documents should be started earlier.
The notification can be made before the signing of the concentration agreement if the business operators can demonstrate with sufficient evidence that they are not able to provide the signed concentration agreement when making the notification due to the reasons that there are business special arrangements, compulsory requirements of other laws, regulations or policies, mandatory requirements of other jurisdictions or other reasonable reasons, or that they will not be able to abide by the relevant statutory review period if making the notification after the signing of the concentration agreement. In such a case, the notifying parties shall provide relevant materials such as the memorandum or framework agreement of the transaction and the draft concentration agreement, with the main terms and conditions of the transaction. And the notifying parties shall provide to SAMR the concentration agreement after the signing of the same without delay.
Is it usual practice to engage in pre-notification discussions with the authority? If so, how long do these typically take?
Before the notification, the business operators involved in a transaction of concentration may apply in writing to SAMR for pre-notification discussion. Issues for which consultation may be requested include:
(1) whether a notification is required for the transaction, including whether the transaction is a concentration of business operators, whether the transaction has reached the notification thresholds, and etc.;
(2) the notification documents and materials required to be submitted, including the information types, forms, contents and level of details of the notification documents and materials;
(3) specific legal and factual issues, including how to define the relevant product market and the relevant geographical market, whether the transaction is qualified as a simple case, and etc.;
(4) issues about the notification and review procedures, including the timing of notification, the parties with obligations to make the notification, the duration of the notification and review, notification procedures for simple cases, notification procedures for non-simple cases, review procedures, and etc.; and
(5) other relevant issues, such as whether the transaction has not been notified pursuant to the law.
What is the basic timetable for the authority’s review?
Having received a notification, SAMR will first examine whether notification documents or materials are in compliance with the statutory formality requirement. If so, SAMR will register the notification and send a notice to the notifying parties. If not, SAMR will request the notifying parties to make supplementary submissions or modifications, or provide clarifications or explanations. There is no statutory time limit for this examination period.
After the registration of the notification, SAMR will have 30 calendar days to conduct preliminary review of the notified concentration and make a decision whether to conduct further review. Where authority decides not to conduct further review or fails to make such a decision at the expiration of the 30 days, the business operators concerned may implement the concentration.
Where SAMR decides to conduct further review, it shall, within 90 calendar days from the date of the decision, complete the further review, and make a decision whether to prohibit the concentration.
Under what circumstances may the basic timetable be extended, reset or frozen?
Under any of the following circumstances, SAMR may extend the period of further review for a maximum of 60 calendar days on condition that it informs the business operators of the extension in writing:
(1) The business operators agree to the extension;
(2) The documents or materials submitted by business operators are inaccurate and therefore need further verification; or
(3) major changes have taken place after the business operators made the notification.
Where the notifying parties withdraw a notification and then refile a new notification, the timetable shall be reset.
The timetable may not be frozen. That said, it should be noted:
(1) There is no time limit for SAMR to examine whether notification documents or materials are in compliance with the statutory formality requirements; and
(2) Where SAMR’s concerns about the impact of the proposed transaction on competition have not been fully addressed by the notifying parties at the end of the review period, the notifying parties may apply to withdraw the original notification and refile a new one.
Are there any circumstances in which the review timetable can be shortened?
Simplified procedures may be applied to concentration of business operators which is qualified as a simple case. Most of the simple cases are cleared within the period of preliminary review, i.e. 30 calendar days from the registration of the case, although there is no mandatory requirement in this regard.
A transaction of concentration of business operators shall be considered a simple case if it falls under any of the following circumstances:
(1) Where in the same relevant market, the total market shares of all business operators participating in the concentration is less than 15%;
(2) Where an upstream-downstream relationship exists among the business operators participating in the concentration, and the market share of such business operators in both the upstream and the downstream markets is less than 25%;
(3) Where the business operators participating in the concentration are neither in the same relevant market nor have any upstream-downstream relationship, and their market share in each market relevant to the concentration is less than 25%;
(4) Where the business operators participating in the concentration intend to establish a joint venture outside the territory of China, and the joint venture will not engage in any economic activities within the territory of China;
(5) Where the business operators participating in the concentration intend to acquire the equity or assets of an overseas enterprise, and the overseas enterprise does not engage in any economic activities within the territory of China; or
(6) Where a joint venture jointly controlled by two or more business operators will be controlled by one or more of the existing business operators after the concentration.
Under either the simplified or non-simplified procedures, the notifying parties may inform SAMR of the urgency for closing the concentration with good cause and request SAMR to clear the concentration at its earliest convenience. In many cases, SAMR will accommodate such requests and make the clearance decision ahead of the statutory deadline.
Which party is responsible for submitting the filing?
Concentration of business operators by way of a merger shall be notified by all the business operators participating in the merger. Concentration of business operators by other means shall be notified by the business operators who will obtain the controlling power, with the other business operators providing cooperation.
What information is required in the filing form?
SAMR publishes templates of Notification Form of Anti-monopoly Review of Concentration of Business Operators (“Notification Form”) and Notification Form of Anti-monopoly Review of Simple Cases of Concentration of Business Operators (“Simplified Notification Form”).
In the Simplified Notification Form, the parties are required to provide SAMR with detailed information regarding the business operators participating in the concentration, the transaction, the definition of the relevant markets, the market shares of the main competitors in each relevant market, the competition analysis of each relevant market, and etc.
In the Notification Form, additional information is required in respect of the supply and demand structure of the relevant markets, the information of the main customers and suppliers, the entry of the relevant markets, the possible efficiency gains arising from the transaction, and etc.
Which supporting documents, if any, must be filed with the authority?
In addition to the Notification Form or Simplified Notification Form itself, the following documents must be filed:
(1) the identity proof or registration certificate of each notifying party, and corresponding notarization and attestation documents if the notifying party is a foreign person;
(2) a power of attorney signed by each notifying party, where an agent is entrusted for the notification;
(3) the concentration agreement, such as shares or assets purchase agreement, joint venture agreement, and etc.; and
(4) the audited financial statements of each of the business operators participating in the concentration for the previous accounting year.
The notifying parties may also provide research or analysis reports on the transaction and/or the relevant sectors to assist SAMR to review the notification.
Is there a filing fee?
No filing fee is charged.
Is there a public announcement that a notification has been filed?
A public announcement will be published immediately after the registration of a simple case by the SAMR. There is no public announcement for registration of non-simple cases. Public announcements are now published on the official website of MOFCOM (http://fldj.mofcom.gov.cn/article/jyzjzjyajgs/), but will be published on the official website of SAMR which is under construction.
Does the authority seek or invite the views of third parties?
Under non-simplified procedures, SAMR may solicit opinions from relevant government agencies such as the Ministry of Industry and Information Technology (“MIIT”), industry associations, business operators and consumers when necessary.
Under the simplified procedures, SAMR normally seek views only from the relevant industry association or government agencies when necessary, but not from other business operators or consumers. However, given that a public announcement is published, any third party may submit comments to SAMR on the concentration.
What information may be published by the authority or made available to third parties?
For each notification, the notifying parties are required to provide a non-confidential version of the Notification Form or Simplified Notification Form and supporting documents. The non-confidential version may be made available to a third party when SAMR seeks views from that third party.
For notifications which have been prohibited or approved with restrictive conditions, the decisions of prohibition or approval are published timely by SAMR. For notifications cleared without conditions, the individual clearance decisions are not made public, but SAMR quarterly publishes information about the notifications cleared without conditions during the previous quarter, including the case name, the business operators participating in the concentration and the date of clearance.
Additionally, a public announcement will be published immediately after the registration of a simple case by SAMR (see question 26).
Does the authority cooperate with antitrust authorities in other jurisdictions?
The authority has entered into a number of cooperation agreements with other jurisdictions, such as the U.S., the EU, Japan, Canada, Brazil and South Africa. In addition to exchanges and dialogues on competition policies, enforcement cooperation in review of individual cases are carried out. In 2017, MOFCOM has cooperated with the authorities in the U.S., EU, South Africa and India in review of over 20 cross-border mergers and acquisitions.
What kind of remedies are acceptable to the authority?
Where SAMR is of the view that a case of concentration of business operators leads, or may lead, to elimination or restriction of competition, the notifying parties may propose to SAMR remedies which could lessen the negative impact of concentration on competition. The remedies to be proposed may include behavioral remedies, structural remedies or comprehensive remedies that combine structural remedies and behavioral remedies. Structural remedies include divestment of tangible assets, intellectual property rights ("IPR") and other intangible assets, or relevant rights and interests, and etc. Behavioral remedies include commitments to make available to other business operators the notifying parties’ networks, platforms and other infrastructure, to license key technologies (including patents, proprietary technologies or other IPRs), and to terminate exclusive agreements, and etc.
What procedure applies in the event that remedies are required in order to secure clearance?
The following procedures apply:
(1) The notifying parties may propose restrictive conditions as remedies after SAMR states that the concentration will lead or will likely lead to elimination or restriction of competition. The notifying parties may also do so before SAMR makes such a statement.
(2) SAMR will engage in consultation with the notifying parties on the restrictive conditions proposals, evaluate the effectiveness, feasibility and timeliness of the proposals, and inform the notifying parties of the evaluation results. For the purpose of evaluating the proposed restrictive conditions, SAMR may solicit the opinions of relevant government agencies, industry associations, business operators and consumers.
(3) Upon receipt of the evaluation results, the notifying parties may submit revised proposals to SAMR. The notifying parties are permitted to revise their proposals for more than once, but a final plan shall be submitted to SAMR 20 calendar days prior to the deadline of the further review.
(4) SAMR will make public the review decision in which restrictive conditions are imposed.
What are the penalties for failure to notify, late notification and breaches of a prohibition on closing?
Where business operators implement concentration in violation of the requirements of the AML, including failure to notify, late notification and breaches of a prohibition on closing, SAMR may:
(1) require them to discontinue such concentration;
(2) require them to dispose of relevant shares or assets, transfer the business and adopt other necessary measures to return to the state prior to the concentration within a specified time limit; and
(3) impose on them a fine of not more than RMB 500,000.
In determining which of the above penalties shall be imposed, SAMR takes into factors such as the nature, extent and duration of the violation as well as the assessment results on the impact of the concentration on competition.
What are the penalties for incomplete or misleading information in the notification or in response to the authority’s questions?
Where a notifying party deliberately conceals important information, refuses to provide relevant materials and information, or provides false materials and information, SAMR may refuse to register the notification or revoke registration that has been made. In addition, SAMR may impose a fine of not more than RMB 200,000 on the notifying party and a fine of not more than RMB 20,000 on the responsible individuals; if the circumstances are serious, SAMR may impose a fine of not less than RMB 200,000 but not more than RMB 1 million on the notifying party and a fine of not less than RMB 20,000 but not more than RMB 100,000 on the responsible individuals; and if a crime is constituted, criminal liability shall be investigated for in accordance with law.
Can the authority’s decision be appealed to a court?
For a decision of SAMR to prohibit concentration or to impose restrictive conditions on concentration, the business operators may first apply for administrative reconsideration, and if they are dissatisfied with the administrative reconsideration decision, they may bring an administrative action before a court. Other decisions, such as one to impose penalties for failure to notify or late notification, may be directly appealed to a court.
What are the recent trends in the approach of the relevant authority to enforcement, procedure and substantive assessment?
First, the numbers of notifications received, registered and completed have been growing. In the year of 2017, MOFCOM has received 400 notifications, registered 353 notifications and completed review of 344 notifications. In the first three quarters of 2018, MOFCOM and SAMR have completed review of 322 notifications.
Second, the vast majority of notifications have been cleared without conditions. In the year of 2017, out of the 344 notifications review of which had been concluded, 337 (98%) were cleared without conditions, 7 (2%) were cleared with conditions and none of the notifications was prohibited. In the first three quarters of 2018, out of the 322 notifications review of which had been concluded, 319 (99%) were cleared without conditions, 3 (1%) were cleared with conditions and none of the notifications was prohibited.
Third, the efficiency of the review procedures has been increased. In 2017, the average period of time for registration of a notification and the average period of time for completing review after registration have been shortened 14.2% and 8% respectively comparing to the last year. And 98% of the simple cases have been cleared within the preliminary review period, i.e. 30 calendar days from the registration of the case.
Fourth, MOFCOM and SAMR apply multiple analytical tools to assess compact of proposed concentration on market competition. Market shares and market concentration are important factors to be taken into account, but other factors like whether the parties participating in the concentration are close competitors are also attached importance. Furthermore, economic analysis tools such as diversion ratio, correlation coefficient of profit margins and gross upwards pricing pressure index (GUPPI), have been used in a number of cases.
Fifth, not only structural remedies but also behavioral remedies or comprehensive remedies have been imposed on concentration that were cleared with restrictive conditions.
Last but not least, MOFCOM and SAMR strengthen investigations and punishments on failure to notify and late notification. To date, 28 punishment decisions have been made public, out of which 11 were made public in the first three quarters of 2018.
Are there any future developments or planned reforms of the merger control regime in your jurisdiction?
MOFCOM planned to amend the Measures for Review of Concentration of Business Operators and published a draft to solicit public comments in September 2017. The amendment was proposed to clarify the concept of control, the calculation of turnovers and some other issues. It is expected that SAMR will proceed with the amendment process.
Further, the amendment of the AML has been put into the Legislative Plan of the Standing Committee of the 13th National People’s Congress. The amendment may cover several issues concerning merger control, such as the notification thresholds and the penalties for failure to notify or late notification.