China: Merger Control

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 [1] (“AML”) and relevant regulations and rules, including the Provisions of the State Council on the Thresholds for Declaring Concentration of Business Operators.[2]

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 newly 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.

[1] Order No. 68 of the President of the People’s Republic of China, adopted on August 30, 2007 and has taken effect as of August 1, 2008.

[2] Decree No. 529 of the State Council, adopted on August 1, 2008 and has taken effect as of August 3, 2008 (afterward amended according to Decree No. 703 of the State Council on September 18, 2018).

Notification is compulsory in China if the notification threshold determined by the State Council is met.

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 order 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 a fine of not more than CNY 500 thousand.

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 to exert a decisive influence on the same gained by a business operator through signing contracts or other means.

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 that 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 sets 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.

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

The jurisdictional thresholds are only related to turnovers of the business operators participating in the concentration. 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 turnovers realized by all the business operators participating in the concentration during the previous accounting year exceeds CNY10 billion with at least two business operators each achieving a turnover of more than CNY 400 million within China during the previous accounting year; or
(2) The total amount of the turnovers realized by all the business operators participating in the concentration within China during the previous accounting year exceeds CNY 2 billion with at least two business operators each achieving a turnover of more than CNY 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.

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 person of the business operator, excluding the turnovers derived from the internal transactions between the entities controlled by the same ultimate controlling person.

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.

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 Chinese Yuan.

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 them shall be considered for the purpose of determining whether the notification thresholds are met. For the calculation of the turnover of each business operator which has the controlling power over the joint venture, please refer to Question 7. For the thresholds of the notification, please refer to Question 6.

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, Company A and Company B shall be the business operators participating in the concentration, and 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 acquire joint control over Company C which was solely controlled by Company D is also considered as concentration of business operators. In this case, Companies A, B and C shall be the business operators participating in the concentration, and the turnovers of each of these three companies shall be calculated for purpose of determining whether the notification thresholds are met.

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.

Not applicable.

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, unless 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. Under the latter circumstances, SAMR may decide to approve the concentration with remedies, i.e., 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 entry 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 necessary to consider 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.

Please refer to Question 13 for the factors to be taken into account.

There are no explicit rules in this regard. Nevertheless, in case of notifications of establishment of joint ventures, other agreements or arrangements, 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 arrangements, which may include restrictions directly related to and necessary to the implementation of the concentration, are covered by SAMR’s clearance decision.

There is no specific deadline for notification of the transaction, but the proposed concentration must be notified and cleared before it is implemented. The registration of the new joint venture (in the case of establishing a joint venture) and the change of registration of the target business operator (in the case of acquisition) with the administration for market regulation are generally deemed to be typical signs of the implementation of concentration. Given that it takes about 2 months to get clearance decision for a simple case under the simplified procedure, the notification of a simple case should better be made, at the latest, 2 months before the date of implementation. For transactions

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 special business arrangements, compulsory requirements under 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, when making the notification, 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.

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 initiate its review 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 review being initiated, SAMR has 30 calendar days (Phase I) to conduct preliminary review of the notified concentration and make a decision whether to conduct further review. Where SAMR 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 (Phase II), complete the further review, and make a decision whether to prohibit the concentration.

Under certain circumstances (see Question 20), SAMR may extend the period for review on condition that it informs the business operators of the extension in writing, and the extension shall not exceed a maximum of 60 calendar days (Phase III).

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 a notifying parties withdraw a notification and then refile a new notification, the timetable shall be reset. This has taken place in several cases to date.

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 Phase III, the notifying parties may apply to withdraw the original notification and refile a new one.

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 initiation of the review, although there is no mandatory requirement in this regard.

A transaction of concentration of business operators shall be considered as a simple case if it falls under any of the following circumstances:

(1) Where in the same relevant market, the total market share 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 each of the upstream market 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.

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.

When there are more than two parties having the obligations to make notifications, they may agree that one of them will be responsible for making the notification. However, if the party responsible for making the notification fails to do so, the other parties having the obligations may not be exempted from relevant liabilities (please refer to Question 32) notwithstanding the aforesaid agreement.

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, 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 into the relevant markets, the possible efficiency gains arising from the transaction, etc.

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 or entity;
(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, etc.;
(4) the audited financial statements of each of the business operators participating in the concentration for the previous accounting year; and
(5) the statement of the authentic of the materials submitted by the parties participating in the concentration.

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.

No filing fee is charged.

A public announcement will be published immediately after the initiation of a simple case by the SAMR. There is no public announcement for initiation of non-simple cases. Public announcements are now published on the official website of SAMR (http://www.samr.gov.cn/fldj/jyajgs/ ).

Under non-simplified procedures, SAMR may solicit opinions from relevant government agencies such as the Ministry of Industry and Information Technology (“MIIT”), industry associations, other 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. SAMR will review and assess the foresaid comments.

For each notification, the notifying parties are required to provide both confidential version and 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 weekly publishes the case name, the business operators participating in the concentration and the date of clearance for each case. Such information is available on the official website of SAMR (http://www.samr.gov.cn/fldj/zwgk/).

Additionally, a public announcement will be published immediately after the initiation of a simple case by SAMR (see question 26).

It is reported that by the end of 2018, the authority has entered into 14 bilateral memorandums with other jurisdictions, such as the U.S., the EU, Japan, Canada, Brazil, South Africa, German, Russia and South Korea. In addition to exchanges and dialogues on competition policies, enforcement cooperation in review of individual cases are carried out.

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 hybrid remedies that combine structural and behavioral remedies. Structural remedies include divestiture of tangible assets, intellectual property rights (“IPR”) and other intangible assets, or relevant rights and interests, etc. Behavioral remedies include commitments to open access to platforms and other infrastructure of the business operators participating in the concentration, to license key technologies (including patents, proprietary technologies or other IPRs), and to terminate exclusive agreements, etc.

The following procedures apply:

(1) The parties participating in the concentration may propose restrictive conditions as remedies after they are informed by SAMR that the concentration will lead or will likely lead to elimination or restriction of competition. The parties may propose remedies before they are so informed by SAMR if they consider necessary.
(2) SAMR will engage in consultation with the parties on the restrictive conditions proposals, evaluate the effectiveness, feasibility and timeliness of the proposals, and inform the 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 parties may submit revised proposals to SAMR. The parties are permitted to revise their proposals for more than once, but a final proposal shall be submitted to SAMR 20 calendar days prior to the deadline of the further review.
(4) SAMR will publish its review decision as well as the final proposal it accepted on its official website (http://www.samr.gov.cn/fldj/tzgg/ftjpz/).

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 a fine of not more than CNY 500 thousand.
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.

By the end of August 2019, MOFCOM and SAMR have published 37 cases of failure to notify. In each of these cases, a fine has been imposed, with the highest being CNY 400 thousand and the lowest being CNY 150 thousand. Penalties stipulated in sub-paragraphs (1) and (2) above have been imposed in none of these cases. One of the reasons is that MOFCOM and SAMR concluded that none of these cases had negative impacts that may lead to the elimination or restriction the competition.

Where the parties participating in the concentration deliberately conceals important information, refuses to provide relevant materials and information, or provides false materials and information, SAMR may refuse to initiate review or revoke the decision to initiate review that has been made. In addition, SAMR may impose a fine of not more than CNY 200 thousand on the entity concerned and a fine of not more than CNY 20 thousand on individual concerned; and in serious circumstances, SAMR may impose a fine of not less than CNY 200 thousand but not more than CNY 1 million on the entity concerned and a fine of not less than CNY 20 thousand but not more than CNY 100 thousand on the individual concerned. If a crime is constituted, criminal liability shall be investigated for in accordance with law.

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 dissatisfied with the administrative reconsideration decision, they may bring an administrative lawsuit before a court. For other decisions, including those imposing penalties on failure to notify or late notification, one may apply for administrative reconsiderations or directly appeal to courts.

First, the vast majority of notifications have been cleared without conditions. In the year of 2018, out of the 448 notifications review of which had been concluded, 444 (99%) were cleared without conditions, 4(1%) notifications were cleared with conditions and none of the notified concentration was prohibited. In the first seven months of 2019, out of the 226 notifications review of which have been concluded, 224 (99%) were cleared without conditions, 2 (1%) were cleared with conditions and none of the notified concentration was prohibited.

Second, the efficiency of the review procedures has been increasing. 365 simple cases were concluded in 2018, accounting for 81.5% of all cases (including unconditional and conditional approvals) concluded by MOFCOM and SAMR. The average period of time for completing the review of a simple case (i.e. from initiation to clearance) is 16 days, which is significantly shorter than that in 2017 (24 days on average). 99% of the simple cases have been cleared within Phase I, i.e. 30 calendar days from the initiation.

Third, SAMR apply multiple analytical tools to assess the impact of proposed concentration on market competition. Market shares and the degree of the market concentration are crucial factors to be considered, but other factors like whether the parties participating in the concentration are close competitors are also attached with importance. Furthermore, economic 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 which were cleared with restrictive conditions.

Fourth, not only structural remedies but also behavioral remedies or hybrid remedies have been imposed on concentration that were cleared with restrictive conditions. Among all the 41 cases cleared with restrictive conditions published by MOFCOM and SAMR by the end of August 2019, 22 were approved with behavioral remedies only, 6 with structural remedies only, and 13 with hybrid remedies.

Last but not least, SAMR strengthen investigations and punishment on failure to notify and late notification. Among the 37 punishment decisions published by the end of August 2019, 19 (more than 50%) were made in 2018 and the first eight months of 2019.

The amendment of the Anti-monopoly Law has been listed in the legislation plan of China’s National People’s Congress. It is reported that a draft amendment of the law had taken shape, and merger control issues including the notification thresholds and the penalties for failure to notify are to be covered in the amendment.

At the regulations level, MOFCOM once published a draft Measures for Review of Concentration of Business Operators for soliciting public comments in 2017, which was aimed to amend the Measure for Notification of Concentration of Business Operators and the Measure for Review of Concentration of Business Operators (both issued by MOFCOM in 2009 and took effect in 2010) and to unify the two into one. The proposed amendment would help to clarify the concept of control, the calculation of turnovers and some other issues. SAMR may proceed with this amendment process.

It is also reported that SAMR may expand its antitrust guidelines to cover merger review.