china’s anti-monopoly law celebrates fifth anniversary
TRANSCRIPT
Briefing
China’s Antimonopoly Law celebrates fifth anniversary 16 August 2013
This briefing examines the key legislative and enforcement developments under the
AML over the past five years and identifies likely future enforcement trends.
Jenny
Connolly
On 1 August 2013 China’s AntiMonopoly Law (AML) celebrated its fifth
anniversary. The past five years have witnessed the development of an
increasingly complete regulatory framework under the AML and an
intensification of its enforcement by the PRC’s antimonopoly enforcement
agencies. While many of the legislative and enforcement efforts of the PRC
authorities have attracted praise, as would be expected of a young antitrust
regime, certain aspects of the regime remain to be improved.
This briefing examines the key legislative and enforcement developments
under the AML over the past f ive years and identi f ies l ikely future
enforcement trends.
Merger control
Enforcement activities
MOFCOM has been active in enforcing the merger control regime under the
AML. Over the past five years, MOFCOM has reviewed a total of 643 cases.
As reflected by the statistics in Figure 1, below, MOFCOM’s case load grew
significantly between the introduction of the AML and 2011, but appears to
have since stabilized.
In terms of the type of transactions that MOFCOM is reviewing, according to
MOFCOM, the majority (65 per cent) of notified cases primarily involve
horizontal overlaps (as opposed to 35 per cent of transactions which primarily
involve vertical or other relations). A significant proportion (36 per cent) of the
transactions reviewed by MOFCOM are joint ventures). For a long time
following the law entering into effect, the notifiablity of joint ventures had been
ambiguous, as joint ventures are not explicitly listed as a type of notifiable
transaction under the AML. In 2012, MOFCOM made it clear in its new
notification form that joint ventures can be notifiable. Unlike in other
jurisdictions such as the EU, all forms of joint ventures in or outside China
st
(even not fullyfunctional, e.g. production joint ventures which supply products
to their joint venture parents without any market facing functions) may be
subject to the filing requirement in China. This explains the relatively high
percentage of joint ventures cases that have been notified to MOFCOM so
far.
While the number of cases it has reviewed has increased yearonyear,
MOFCOM has also become increasingly confident and sophisticated in its
competition assessment of mergers. This is evidenced by a comparison of the
detailed drafting of recent conditional clearances with that of earlier
announcements.
While still a relatively young agency, MOFCOM has not hesitated to impose
remedies on global transactions where other jurisdictions have not, or to act
in divergence from its peers in more mature jurisdictions when imposing
remedies (see, for example, the recent MOFCOM conditional clearance
decisions in Glencore/Xstrata and Marubeni/ Gavilon). Notably, 2012 saw the
highest number of interventions in transactions with six remedies imposed.
Finally, it is notable that MOFCOM has disclosed that it has fined or warned
the parties to 8 transactions that did not notify, although it has not chosen to
publish its penalty decisions.
Legislation
On the legislative front, over the past five years, MOFCOM has issued a
significant number of regulations addressing both substantive and procedural
aspects of the merger control regime. In terms of substantive issues, the
issues of notifiability and market definition have been addressed, but
measures relat ing to the def ini t ion of the key terms of ‘control’ and
‘undertaking’ are yet to be finalised. On the procedural side, MOFCOM has
issued a number of regulations that address the review process in detail. It
has also recently updated the notification form, clarifying some issues
surrounding the notification of joint ventures. The agency is further currently
drafting rules to distinguish “simple” cases, with a view to allowing ‘simple’
cases to be cleared within Phase I of the merger review process. These
’simple case’ rules, along with regulations addressing the imposition of
merger remedies, are expected to be finalised in the coming year.
Issues relating to the China merger control process that carry implications for
filing parties
Firstly, it is perceived that MOFCOM is understaffed and that this has
affected its ability to accommodate its ever increasing merger review case
load. In our experience, MOFCOM’s review currently takes a minimum of 45
months to complete from the time of submission. As the AML imposes a
suspensory obligation, which prevents companies from closing a transaction
prior to receiving clearance from MOFCOM, this long review duration has a
significant impact on the timing and planning of global transactions. It is
hoped that the planned “simple” case rules will enable MOFCOM to clear
straightforward transactions more quickly.
Second, in terms of transparency, while MOFCOM has operated in a
transparent manner in its legislative activities, has become increasingly
transparent in publishing details of its case load and has recently included
more detailed reasoning in its conditional clearance decisions, on the other
hand, however, compared with other more mature competition agencies,
there are fewer interactions (e.g. stateofplay meetings) between filing
parties and the case team in China during the review process. Therefore, the
parties often find it difficult to stay wellinformed of the status of the review
and the potential concerns MOFCOM might have. In addition, MOFCOM is
obliged to publish its reasoned decisions only if it intervenes in a transaction.
To date, there have been only 20 published decisions, providing insufficient
guidance to companies on how MOFCOM reviews a specific transaction. It
would be helpful were MOFCOM to publish a number of unconditional
approval decisions, or at least to disclose the approach adopted in its review
(e.g. in defining the relevant markets).
Finally, while MOFCOM has consistently emphasized that its review focuses
on competition factors above other aspects, the AML appears to mandate
MOFCOM to take noncompetition concerns and the public interest into
account and it is unclear to what extent these factors may affect the outcome
of the review process. From a review of MOFCOM’s conditional approval
decisions, these factors have arguably been present in MOFCOM’s
reasoning in a number of remedies decisions, in which atypical behavioural
remedies have been imposed, seemingly to address noncompetition
concerns.
Nonmerger antitrust enforcement
The NDRC and SAIC enforce respectively against price and nonprice related
breaches of the AML provisions governing anticompetitive conduct, including
horizontal agreements, vertical agreements and abuse of dominance.
In the initial period following the introduction of the AML, the NDRC and SAIC
engaged in a period of capacity building refraining from pursuing a significant
number of investigations. Over the past 24 months, however, the agencies
have been instigating investigations with increased frequency and levying
increasingly large fines against noncompliant parties. The NDRC has now
concluded more than 30 cases and the SAIC has concluded at least 12. The
agencies are now adding additional resources and coordinating more closely
with existing resources at the local level and it appears that the upsurge in
enforcement activity is set to continue (by relying on increased and better
trained local capacity).
One interesting aspect of the PRC’s system is the jurisdictional split between
the two nonmerger agencies, which is a legacy of their separate roles in
enforcing the Price Law (NDRC) and the Law against Unfair Competition
(SAIC). In cases involving both pricerelated and nonpricerelated violations
of the AML, this split jurisdiction raises the question as to which agency
would have jurisdiction. As of today, there does not appear to be close
coordination between the two agencies and it remains to be seen how these
two agencies will address their overlapping jurisdictions in complicated
cases. In a recent case, the Hunan AIC fined a number of insurance
companies and chambers of commerce for setting up insurance cartels in
cities throughout the province. Several months after this, the local DRC
announced the results of a separate investigation in another city, in the same
province, against a number of the same companies, for the same conduct.
This highlights the overlapping jurisdiction of the two agencies. A senior
NDRC official recently suggested that, in future cases involving both price
and nonprice related breaches of the AML, the NDRC and the SAIC will
investigate jointly.
It is also worth noting that the two agencies have steadily increased their
international cooperation over the past five years, signing MOUs with peer
regulators throughout the world, most recently with the EU Commission in
2012 and the US agencies in 2011.
Enforcement activity
In terms of priorities, the agencies have investigated cases in a broad range
of consumerfacing sectors, such as construction, agriculture, consumer
goods, insurance, pharmaceuticals, and automobiles. The SAIC has recently
stated that it will continue to focus its enforcement efforts on consumerfacing
industries in the near future.
Horizontal agreements
Horizontal agreements have been a priority for both the NDRC and SAIC over
the last five years. Most recently, two cases have signaled the continued
importance that the Chinese antitrust authorities pay to enforcing against
cartels. In October 2012, the NDRC investigated and fined a cartel involving
20 sea sand extraction companies in Guangdong. These companies had
coordinated pricing leading to a doubling of the downstream price of sea sand
as used in construction materials. This case is notable in that it appears to be
the first publicly announced case in which a company has taken advantage of
the leniency provisions of the AML, whereby the company was awarded 50
per cent leniency with its fine reduced to 5 per cent of turnover. The
disclosure of the use of the leniency regime by a company in this case may
increase the likelihood of whistleblowing in future cases, increasing the
enforcement risk for companies engaged in cartel behaviour.
Most recently, the NDRC announced, in January 2013, China’s f irst
enforcement action against a cartel that operated internationally, involving six
international manufacturers of LCD flat panel displays. The NDRC’s penalty,
while significantly lower than that imposed by the EC, is still a high penalty for
China, at RMB353 million (approx. USD56.7 million). Interestingly, this action
was brought under the Price Law, due to the fact that the cartel operated prior
to the promulgation of the AML. Indeed, the NDRC commented that, had the
cartel been operating following the introduction of the AML, the fines would
have been based on turnover and therefore significantly higher. This case
suggests that the NDRC has become increasingly confident in joining other
major antitrust agencies in investigating international cartels, underlining the
Chinaspecific risks for companies that have extensive business activities in
China and that have been involved in international cartels in other
jurisdictions.
It is notable that, in the initial years following the introduction of the AML, the
NDRC based its investigations on the Price Law and levied relatively light
fines on the undertakings concerned. This was evident in the Rice Noodles
(fines of between RMB30,000 and RMB100,000 or approx. USD4,500 to
USD16,500 at today’s rates), Sterilised dining utensils (no fines), and Cold
Storage (RMB80,000 or approx. USD13,000 at today’s rates) cases that took
place in 20082009. However, recent decisions are strong indications that the
NDRC and SAIC are both comfortable in launching actions under the AML
and fines are increasingly reaching the level of ‘turnover’ sanctions under the
AML, which are between 110% of the previous years’ turnover of the
infringing undertaking.
Vertical agreements
In recent months, the NDRC has launched a ser ies of h ighprofile
enforcement actions against restraints in vertical agreements, particularly with
regard to resale price maintenance (RPM). Following a reported investigation
into RPM in the automotive industry in 2012, in February 2013, the NDRC
levied penalties of RMB247 million (approx. USD39.5 million) and RMB202
million (approx. USD32.3 million) against two stateowned enterprises, Moutai
and Wuliangye, respectively, for imposing vertical restraints in the course of
commercial agreements, including RPM clauses.
These record fines were closely followed by an investigation into nine
Chinese and international infant formula companies for RPM and vertical
restraints. Following several weeks of investigation, the NDRC announced
fines totaling RMB670mn (approx. US$110mn) on six of the manufacturers,
with full immunity granted to three manufacturers. This was the first case,
involving an international company, in which the NDRC has specifically
calculated fines on a turnover basis. For a long time, there was uncertainty as
to whether the fines under the AML are calculated on the basis of the
turnover of the PRC entities of the undertakings concerned, or are instead
calculated on the basis of the global turnover of the undertakings concerned.
It is interesting to note that the turnover included as the basis for the fines in
this case was the local turnover of the PRC entities of the brands in question.
Another interesting point to note with regard to this investigation is that, as a
result of the investigation, a number of the manufacturers in question have
implemented significant price reductions for their products. It is unclear
whether these price reductions are part of the remedies offered by the
relevant manufacturers to the NDRC to settle their cases. It is worth noting
that it would be rare for pricing commitments to be offered to, or requested
by, a competition regulator in the EU and US. If the NDRC indeed endorsed
these commitments, this would partly reflect its historic and continuing role as
a pricing regulator.
Despite the NDRC’s recent active enforcement actions against RPM, the
NDRC has not clarified in its decisions whether RPM is subject to a ‘rule of
reason’ or is deemed ‘per se’ illegal. Given that these decisions are very brief
and contain little analysis and reasoning, they inevitably invite people to
question whether the NDRC is leaning towards adopting a ‘per se’ illegal
approach with respect to RPM.
Abuse of dominance
Abuse of dominance has been subject to fewer administrative enforcement
actions than have anticompetitive agreements, to date. However, in a
landmark case, the NDRC opened a highprofile investigation into two state
owned telecommunications companies, for abusing their dominance in pricing
discriminately wholesale access to their broadband networks. In this case,
although the NDRC has not published its decision, it has been reported that
the NDRC has accepted a three year behavioural remedy, with both
companies so far complying with the NDRC’s terms.
In June 2013, the SAIC is reported to have launched an investigation into
Tetra Pak for tying the sale of its packaging machines to packaging materials.
It is notable that the SAIC has deployed considerable resources in this
investigation, mobilizing investigators in over 20 provinces and municipalities.
Another interesting aspect of this case is that the SAIC states that it has
recovered electronic evidence that had previously been deleted. This
demonstrates that the agencies are becoming increasingly technically
sophisticated in carrying out evidence collection.
Legislation
Since 2009 both the SAIC and the NDRC have issued guidance on
fundamental aspects of their enforcement against monopoly agreements and
abuse of dominance. As the agencies become more sophisticated, it is
expected that more detailed guidelines on substantive issues such as vertical
restraints and the calculation method for fines will be issued. In recent
months, the SAIC has been preparing administrative rules on abuse of IPR
which, among other measures, provide that dominant undertakings may not
discriminately refuse to license or refuse to licence essential IP, may not
engage in bundling or tying, and may not attach other unfair trading
conditions.
In addition, the draft rules provide that horizontal agreements involving IPR,
which the SAIC cannot prove restrict or eliminate competition, can take
advantage of safe harbour where the combined market share of the
undertakings involved is less than 20 per cent (or where there are at least
four other undertakings with closely substitutable IPR). Vertical agreements
are subject to a safe harbour of 30 per cent market share per undertaking (or
where there are at least two other undertakings with closely substitutable
IPR). Finally, the rules aim to curtail patent ambushes by members of
standards setting organisations.
Civil actions
Private enforcement of the AML has seen a similar rise in intensity over the
past five years. Unofficial statistics provided by a judge of the Supreme
People’s Court (SPC) suggest that a total of approximately 60 cases were
accepted by the courts between 2008 and 2011 while, in 2012, the number of
cases spiked to nearly 100 in that single year alone. It is assumed that this
rise is largely a result of the longawaited judicial interpretation by the SPC on
private claims under the AML, which was released in May, 2012. This judicial
interpretation clarified some outstanding issues of standing and, notably,
introduced procedural changes in antitrust cases including, among other
changes, the reversal of the burden of proof from the plaintiff to the defendant
in actions pertaining to cartel agreements.
In terms of the types of cases being heard in China, while many early cases
were brought by private lawyers, in their capacity as consumers, against
companies as ‘test’ cases, and were heard under Chinese contract or tort
laws, the number of such cases has decreased and antitrust cases involving
real commercial disputes between companies are now more regularly being
brought before the courts. Unlike in the EU and US (where followon claims
are more common), in China most private claims are standalone claims
without prior public enforcement decisions. In addition, according to the SPC,
a greater number of cases concern abuse of dominance than anticompetitive
agreements.
Of the hundreds of private actions so far, a number have attracted significant
attention. In the highprofile case Qihoo 360 v Tencent (2012), Qihoo 360
accused Tencent of abusing its position of dominance in the market of online
instant communications services. The Guangdong Higher People’s Court
issued a detailed decision in favour of Tencent, which included extensive
discussion on the complex issue of market definition in the internet sector and
the alleged abusive conduct, ruling that Qihoo had failed to establish
Tencent’s dominance. This case is now on appeal before the SPC.
Another notable case that has attracted significant public attention, as it
sought to address fundamental questions regarding the treatment of vertical
agreements (in particular, RPM) under the AML, is Ruibang v Johnson &
Johnson (2012). In this case, the first instance court’s decision suggested
that an effects based analysis is required to establish an infringement of
article 14 of the AML, which governs vertical agreements, rather than vertical
restraints in such agreements being ‘per se’ illegal. This ‘rule of reason’
approach was affirmed by the Shanghai Higher People’s Court on appeal,
although the appellate court reversed the judgment of the lower court and
ordered Johnson & Johnson to pay damages to Ruibang for engaging in
RPM.
In another recent notable case, in early 2013, in two actions which are
collectively referred to as Huawei v InterDigital, the Shenzhen Intermediate
People’s Court found for Huawei against InterDigital for abuse of dominant
position in the course of licensing its standardsessential patents (SEPs) to
Huawei. The court also capped the royalties payable to InterDigital by Huawei
for its SEPs, the F/RAND (fair, reasonable and nondiscriminatory) rate.
InterDigital has indicated that it will appeal these decisions.
Conclusion
With respect to merger control, the number of transactions under review by
MOFCOM has risen to a relatively high figure. Furthermore, MOFCOM is
regularly intervening in highprofile global transactions. This trend is expected
to continue. The lack of certainty as well as transparency of the MOFCOM
review process may cause practical challenges to companies contemplating
international transactions. Filing parties are therefore advised to exercise
caution and, where necessary, to seek advice when planning deal timetables,
(particularly where the deal is in the form of a public bid) and in negotiating
the conditions precedents in merger transaction documents. Given the
relatively long review timeline, companies are also advised to prioritize the
PRC merger filing, when they are engaging in a crossborder transaction
which triggers multijurisdictional filings, so that Chinese merger clearance will
not be the gatekeeper for the closing of the transaction. As MOFCOM is also
increasingly confident in taking a different approach from that taken by other
major competition authorities and as noncompetition factors appear to play a
role in the review process, companies should not assume that just because
other agencies have unconditionally cleared their transaction or because,
from a purely competition analysis perspective, there do not appear to be any
substantive issues, that their cases will not prove to be problematic in China.
In addition to typical competition analysis, companies need to seek local
advice to identify the noncompetition concerns early on and have a game
plan to address such concerns to avoid the risk of noncompetition issues
creating surprises in the review process and, in the worst scenario, derailing
the transaction.
In terms of nonmerger enforcement, the NDRC and SAIC are gradually
building up their enforcement reputation within and outside China.
International cartels may now be deemed a focus (following the LCD case),
and it appears that the NDRC’s campaign against vertical restraints is set to
continue. The historic enforcement records of the two agencies and recent
statements by the SAIC indicate that consumerfacing industries such as
pharmaceuticals, consumer goods and food products (such as infant formula
milk power) are at a higher risk of enforcement in China.
In addition to enhanced administrative enforcement, multinational companies
cannot afford to overlook private actions under the AML. In particular, the
SPC’s judicial interpretation of the AML and the SAIC’s upcoming IP rules are
expected to encourage private actions. Dominant firms with significant IP
portfolios will need to be more careful in managing the potential increase in
antitrust risk when leveraging their IP rights, in the future.