In order to further improve the anti-monopoly legal system and improve the quality and efficiency of centralized anti-monopoly examination of operators, the General Administration of Market Supervision revised the Interim Provisions on Centralized Examination of Operators, and formed the Provisions on Centralized Examination of Operators (Draft for Comment), which is now open to the public for comments. The public can put forward their opinions through the following channels and ways:
First, by logging on to the official website of the State Administration of Market Supervision (website: http://www.samr.gov.cn), put forward opinions in the "Solicitation Survey" in the "Interaction" column on the home page.
2. Send it to jyzjz@samr.gov.cn by e-mail. The subject of the email should be marked with the words "Provisions on Centralized Examination of Operators for Public Solicitation of Opinions".
3. Send it by letter to No.8 Sanlihe East Road, Xicheng District, Beijing (Postal code: 100820). Please indicate on the envelope the words "Provisions on Centralized Examination of Operators for Public Solicitation of Opinions".
The deadline for feedback is July 27, 2022.
Annex: 1. Provisions on Centralized Examination of Operators (Draft for Comment)
2. Explanation on the Provisions on Centralized Examination of Operators (Draft for Comment)
General administration of market supervision
June 27, 2022
Provisions on centralized examination of operators
(Draft for Comment)
Chapter I General Provisions
Article 1 These Provisions are formulated in accordance with the Anti-monopoly Law of the People’s Republic of China (hereinafter referred to as the Anti-monopoly Law) and the Provisions of the State Council on the Criteria for Centralized Declaration of Operators, in order to standardize the anti-monopoly examination of business operators.
Article 2 The State Administration of Market Supervision (hereinafter referred to as the General Administration of Market Supervision) is responsible for the centralized anti-monopoly review of business operators, and centralized investigation and handling of business operators who violate the law.
According to the needs of the work, the General Administration of Market Supervision may entrust the market supervision departments of provinces, autonomous regions and municipalities directly under the Central Government to carry out centralized examination of operators.
Article 3 Concentration of business operators as mentioned in these Provisions refers to the following situations as stipulated in Article 25 of the Anti-monopoly Law:
(1) merger of operators;
(2) An operator obtains control over other operators by acquiring equity or assets;
(3) An operator obtains control over other operators by means of contracts or can exert decisive influence on other operators.
Article 4 To determine that an operator has control over other operators or can exert decisive influence on other operators, it shall take into account the fact that the operator directly or indirectly holds voting rights or similar rights and interests of other operators, as well as the influence on the appointment and removal of senior management personnel, financial budget, business plan and other business decisions and management of other operators.
To judge whether an operator obtains control over other operators or can exert decisive influence on other operators through transactions, the following factors shall be considered:
(a) the purpose of the transaction and future plans;
(2) The ownership structure of other operators before and after the transaction and its changes;
(3) Voting matters and voting mechanism of other operators’ shareholders’ meetings and other power institutions, as well as their historical attendance rate and voting situation;
(4) The composition of decision-making or executive bodies such as the board of directors of other operators and their voting mechanisms;
(five) the appointment and removal of senior management personnel of other operators;
(six) the relationship between the shareholders and directors of other operators, whether there are entrusted voting rights, concerted action, etc.;
(seven) whether there is a major business relationship or cooperation agreement between the operator and other operators;
(8) Other factors that should be considered.
If two or more operators have control over other operators or can exert decisive influence on other operators, it constitutes joint control over other operators.
Article 5 The General Administration of Market Supervision shall treat all operators equally when conducting centralized anti-monopoly review and investigation of operators.
Article 6 The General Administration of Market Supervision shall improve the centralized classification and grading examination system for business operators.
The General Administration of Market Supervision may formulate specific examination measures for the concentration of operators in important fields such as the national economy and people’s livelihood.
The General Administration of Market Supervision regularly evaluates the implementation effect of the centralized review system for operators, so as to improve the quality and efficiency of the review.
Chapter II Centralized Declaration by Operators
Article 7 Where the concentration of business operators meets the reporting standards stipulated by the State Council (hereinafter referred to as the reporting standards), the business operators shall report to the General Administration of Market Supervision in advance, and the concentration shall not be implemented without reporting or obtaining approval after reporting.
Where the concentration of business operators fails to meet the reporting standards, but there is evidence that the concentration of business operators has or may have the effect of eliminating or restricting competition, the General Administration of Market Supervision may require the business operators to declare and notify the business operators in writing. Where concentration has been implemented, the General Administration of Market Supervision may require the operator to make up the report within 180 days.
For the concentration of business operators mentioned in the preceding paragraph, business operators shall submit documents and materials to the General Administration of Market Supervision in accordance with Article 14 of these Provisions. If the concentration has not been implemented, the operator shall not implement the concentration without reporting or obtaining approval after reporting; Where concentration has been implemented, the General Administration of Market Supervision may require operators to stop implementing concentration or take other necessary measures.
Article 8 Turnover includes the income obtained by relevant operators from selling products and providing services in the previous fiscal year, after deducting relevant taxes and surcharges.
The "previous fiscal year" mentioned in the preceding paragraph refers to the fiscal year preceding the signing date of the centralized agreement.
Article 9 Operators participating in concentration as mentioned in these Provisions refer to the following operators:
(1) Where operators are merged, the parties to the merger are the operators participating in the concentration.
(2) If an operator obtains independent control over other operators, or changes from joint control to independent control over other operators, the operator and other operators who have obtained independent control shall be the operators participating in the concentration.
(3) An operator obtains joint control over other operators, and all operators and other operators who jointly control the other operators after the transaction are all operators participating in the concentration. However, other operators were originally controlled by a single operator. After the transaction, this operator changed from separate control to joint control over other operators. After the transaction, all operators who jointly control other operators are operators who participate in concentration, and other operators are not operators who participate in concentration.
(4) Where the operators establish a new joint venture, the operators who jointly control the new joint venture are the operators who participate in the concentration, and the new joint venture is not the operators who participate in the concentration.
(5) If an operator can exert decisive influence on other operators, the operator and other operators shall be the operators participating in the concentration.
Article 10 The turnover of an operator participating in concentration shall be the sum of the turnover of the operator and all operators who have direct or indirect control relations with the operator at the time of reporting, but excluding the turnover among the above operators.
When an operator acquires a component of another operator, if the transferor no longer has control over the component or cannot exert decisive influence, the turnover of the target operator only includes the turnover of the component.
When there are other operators under common control between the operators participating in the concentration or between the operators participating in the concentration and the operators not participating in the concentration, the turnover of the operators participating in the concentration shall include the turnover between the operators under common control and the third-party operators, and this turnover shall be calculated only once.
The calculation of the turnover of financial operators shall be carried out in accordance with the relevant provisions on the calculation of the turnover of centralized declaration by financial operators.
Article 11 The concentration of operators who fail to meet the reporting standards for many times within two years between the same operators shall be regarded as a concentration, and the concentration time shall be counted from the last transaction, and the turnover of the operators participating in the concentration shall be calculated by combining multiple transactions. Operators who carry out the above-mentioned acts through other operators who have control relations with them shall be dealt with in accordance with these provisions.
The term "two years" as mentioned in the preceding paragraph refers to the period from the date of completion of the first transaction to the date of signing the agreement for the last transaction.
Article 12 The General Administration of Market Supervision shall strengthen the guidance on centralized declaration of business operators. Before the formal declaration, the business operator may put forward specific issues for discussion to the General Administration of Market Supervision in writing on the centralized declaration.
Article 13 Concentration of business operators through merger, and all parties to the merger are reporting obligors; Under other circumstances, the operator who is concentrated, obtains control or can exert decisive influence is the declaration obligor, and other operators shall cooperate.
If there are more than one declaration obligor in the same business operator, one declaration obligor may be entrusted to declare. If the entrusted declaration obligor fails to declare, other declaration obligors cannot be exempted from the declaration obligation. If the declaration obligor fails to declare, other operators involved in concentration may file a declaration.
The declarant may declare by himself or entrust others to declare on his behalf according to law.
Article 14 The application documents and materials shall include the following contents:
(1) a declaration. The declaration shall specify the name, domicile (place of business), business scope and scheduled date of concentration of the business operators participating in the concentration, and attach the applicant’s identity certificate or registration documents. The overseas applicant shall also submit the notarization documents and relevant authentication documents of the local notary office. Where an agent is entrusted to declare, a power of attorney shall be submitted.
(2) An explanation of the impact of concentration on the competition in the relevant market. Including the overview of centralized transactions; Definition of relevant markets; The market share of the operators involved in concentration in the relevant market and their control over the market; Main competitors and their market share; Market concentration; Market entry; Current situation of industry development; The influence of concentration on market competition structure, industry development, technological progress, innovation, national economic development, consumers and other operators; Effect evaluation and basis of concentration on relevant market competition.
(3) Centralized agreement. Including various forms of centralized agreement documents, such as agreements, contracts and corresponding supplementary documents.
(4) The financial and accounting reports of the operators participating in the concentration in the last fiscal year audited by an accounting firm.
(5) Other documents and materials required by the General Administration of Market Supervision.
The declarant and the declarant’s agent shall be responsible for the authenticity of the declaration documents and materials.
Article 15 The applicant shall mark the business secrets, undisclosed information, confidential business information, personal privacy or personal information in the application documents and materials, and submit the public version and confidential version of the application documents and materials at the same time. The application documents and materials shall be in Chinese.
Article 16 The General Administration of Market Supervision shall check the documents and materials submitted by the applicant, and if it finds that the application documents and materials are incomplete, it may require the applicant to make up them within the prescribed time limit. If the applicant fails to pay the overdue fee, it shall be deemed as undeclared.
Article 17 If the General Administration of Market Supervision considers that the application documents and materials meet the statutory requirements after verification, it shall formally accept them and notify the applicant in writing from the date of receiving the complete application documents and materials.
Article 18 Where the concentration of business operators fails to meet the declaration standards, the business operators who participate in the concentration voluntarily file a declaration of concentration of business operators, and the General Administration of Market Supervision considers it necessary to formally accept the declaration documents and materials after review, it shall review them and make a decision in accordance with the Anti-monopoly Law.
Nineteenth in any of the following circumstances, the operator can declare as a summary case, and the General Administration of Market Supervision will review it according to the summary case procedure:
(1) In the same relevant market, the sum of the market shares of the operators participating in concentration is less than 15%; In the upstream and downstream markets, the market share of operators participating in concentration is less than 25%; Operators who are not in the same relevant market and have no upstream or downstream relationship have a market share of less than 25% in each market related to transactions;
(two) the business operators involved in concentration set up joint ventures outside China, and the joint ventures are not engaged in economic activities in China;
(three) the business operators who participate in the concentration purchase the equity or assets of an overseas enterprise, which is not engaged in economic activities in China;
(4) A joint venture jointly controlled by two or more operators is controlled by one or more of them through centralization.
Twentieth in accordance with the provisions of article nineteenth, but there is one of the following circumstances, not as a summary case:
(1) A joint venture jointly controlled by two or more operators is controlled by one of them through centralization, and the operator and the joint venture belong to competitors in the same relevant market, and the total market share is more than 15%;
(two) the relevant market involved in the concentration of business operators is difficult to define;
(three) the concentration of operators may have adverse effects on market entry, technological progress and innovation;
(four) the concentration of business operators may have adverse effects on consumers and other relevant business operators;
(five) the concentration of operators may have an adverse impact on the development of the national economy;
(6) Other circumstances that the General Administration of Market Supervision considers may adversely affect market competition.
Chapter III Centralized Examination of Operators
Article 21 The General Administration of Market Supervision shall, within 30 days from the date of formal acceptance, conduct a preliminary examination of the declared business operators, make a decision on whether to implement further examination, and notify the business operators in writing.
If the General Administration of Market Supervision decides to implement further review, it shall complete the review within 90 days from the date of decision, make a decision on whether to prohibit the concentration of operators, and notify the operators in writing. In case of compliance with the provisions of the second paragraph of Article 31 of the Anti-monopoly Law, the General Administration of Market Supervision may extend the review period stipulated in this paragraph for a maximum of 60 days.
Article 22 In the course of review, in case of any circumstance specified in Article 32 of the Anti-monopoly Law, the General Administration of Market Supervision may decide to suspend the calculation of the review period of concentration of business operators and notify the reporting obligor in writing, and the calculation of the review period shall be suspended from the date of making the decision.
The review period shall continue to be calculated from the date when the situation of suspending the calculation of the review period is eliminated. The General Administration of Market Supervision shall make a decision to continue to calculate the review period and notify the reporting obligor in writing.
Article 23 In the process of review, if the reporting obligor or other trading party fails to submit documents and materials in accordance with the provisions, which will lead to the failure of the review, the General Administration of Market Supervision shall notify the operators in writing to make corrections within a time limit.
If it is really difficult to submit documents and materials within the time limit specified in the notice of the preceding paragraph, the reporting obligor or other parties may explain the reasons to the General Administration of Market Supervision, which may extend the time limit for correction.
If the reporting obligor or other trading party fails to submit documents and materials within the time limit for correction, or the documents and materials submitted do not meet the requirements, the General Administration of Market Supervision may make a decision to suspend the calculation of the review period.
After the review period is suspended, if the reporting obligor or other trading parties supplement the documents and materials that meet these provisions, so that the obstacles that the review cannot be carried out are eliminated, the General Administration of Market Supervision shall make a decision to continue to calculate the review period.
Article 24 In the course of the review, new situations and facts that have a significant impact on the review appear, and the General Administration of Market Supervision needs to verify the relevant situations and facts. If the review cannot be carried out without verification, it may make a decision to suspend the calculation of the review period.
If the facts submitted by the reporting obligor in the reporting documents and materials have changed significantly, or other new situations and facts that the reporting obligor knows or should know have a significant impact on the review, it shall take the initiative to report to the General Administration of Market Supervision and supplement the documents and materials.
After completing the verification, the General Administration of Market Supervision shall make a decision to continue to calculate the review period.
Article 25 If the General Administration of Market Supervision informs the business operators that it is necessary to further evaluate the restrictive conditions attached to the concentration of business operators, the business operators may request to suspend the calculation of the review period. If the General Administration of Market Supervision deems it necessary, it shall agree to the request for suspension and make a decision to suspend the calculation of the review period.
Where the General Administration of Market Supervision completes the evaluation and informs the reporting obligor of the evaluation results, it shall make a decision to continue to calculate the review period.
Twenty-sixth before the General Administration of Market Supervision makes a review decision, the applicant shall submit a written application and explain the reasons for withdrawing the centralized declaration of business operators. With the consent of the General Administration of Market Supervision, the applicant may withdraw the declaration.
If there is a major change in the centralized trading situation or the competition situation in the relevant market and it is necessary to declare again, the applicant shall apply for withdrawal.
If the centralized declaration of the operator is withdrawn, the review procedure shall be terminated. The consent of the General Administration of Market Supervision to withdraw the declaration shall not be regarded as the approval of concentration.
Article 27 During the review, the General Administration of Market Supervision may, according to the needs of the review, require the applicant to supplement the relevant documents and materials within the prescribed time limit.
The applicant can take the initiative to provide relevant documents and materials that will help to review and make decisions on the concentration of business operators.
Article 28 During the review process, the business operators participating in concentration may make written statements on the relevant declaration matters to the General Administration of Market Supervision by means of letters, faxes and emails, and the General Administration of Market Supervision shall listen to the statements of the parties concerned.
Twenty-ninth in the process of review, the General Administration of Market Supervision may, according to the needs of review, solicit the opinions of relevant government departments, trade associations, operators, consumers and other units or individuals.
Thirtieth review of the concentration of business operators, should consider the following factors:
(a) the market share of the operators involved in concentration in the relevant market and their control over the market;
(2) Market concentration of relevant markets;
(three) the impact of the concentration of operators on market entry, technological progress and innovation;
(four) the impact of the concentration of operators on consumers and other relevant operators;
(five) the impact of the concentration of operators on the development of the national economy;
(six) other factors that should be considered to affect market competition.
Article 31 To evaluate the competitive impact of concentration of business operators, we can examine the ability, motivation and possibility of relevant business operators to exclude or restrict competition individually or jointly.
Where the upstream and downstream markets or related markets are involved, the ability, motivation and possibility of relevant operators to use their control power in one or more markets to exclude or restrict competition in other markets can be investigated.
Article 32 To evaluate the market control power of operators participating in concentration, we can consider the market share of operators participating in concentration in relevant markets, the degree of substitution of products or services, the ability to control the sales market or raw material procurement market, financial resources and technical conditions, as well as the market structure of relevant markets, the production capacity of other operators, the purchasing power of downstream customers and the ability to switch suppliers, and the offset effect of potential competitors.
To evaluate the market concentration of relevant markets, we can consider the number of operators and market share of relevant markets.
Article 33 To evaluate the influence of concentration of operators on market entry, we can consider the influence of operators on market entry by controlling production factors, sales and procurement channels, key technologies, key facilities and data, and consider the possibility, timeliness and sufficiency of entry.
To evaluate the influence of operator concentration on technological progress and innovation, we can consider the influence of operator concentration on technological innovation motivation, investment and utilization of technological research and development, and integration of technological resources.
Article 34 To evaluate the impact of concentration of business operators on consumers, we may consider the impact of concentration of business operators on the quantity, price, quality and diversification of products or services.
To evaluate the impact of concentration of operators on other relevant operators, we can consider the impact of concentration of operators on competitive conditions such as market entry and trading opportunities of operators in the same related market, upstream and downstream markets or related markets.
Article 35 To evaluate the impact of concentration of business operators on national economic development, we can consider the impact of concentration of business operators on economic efficiency, business scale and the development of related industries.
Article 36 To evaluate the competitive impact of concentration of operators, we can also comprehensively consider the impact of concentration on public interests, whether the operators participating in concentration are enterprises on the verge of bankruptcy and other factors.
Article 37 If the General Administration of Market Supervision thinks that the concentration of business operators has or may have the effect of eliminating or restricting competition, it shall inform the applicant and set a reasonable time limit for allowing business operators participating in the concentration to submit written opinions.
The written opinions of the operators involved in concentration shall include relevant facts and reasons, and provide corresponding evidence. If the business operators involved in concentration fail to submit written opinions within the time limit, it shall be deemed as no objection.
Article 38 In order to reduce the effect of concentration on excluding and restricting competition, the operators participating in concentration may propose a commitment scheme with additional restrictive conditions to the General Administration of Market Supervision.
The General Administration of Market Supervision shall evaluate the effectiveness, feasibility and timeliness of the commitment scheme, and notify the applicant of the evaluation results in a timely manner.
If the General Administration of Market Supervision thinks that the commitment scheme is not enough to reduce the adverse impact of concentration on competition, it may negotiate with the operators involved in concentration on restrictive conditions and ask them to propose other commitment schemes within a reasonable period of time.
Article 39 The restrictive conditions may include the following types according to the specific conditions of centralized transactions of business operators:
(1) Structural conditions such as divestiture of tangible assets, intangible assets such as intellectual property rights and data or related rights and interests (hereinafter referred to as divestiture business);
(2) Behavioral conditions such as opening its network or platform infrastructure, licensing key technologies (including patents or other intellectual property rights), terminating exclusive agreements, maintaining independent operation, modifying platform rules or algorithms, and promising compatibility or not lowering the level of interoperability;
(3) Comprehensive conditions combining structural conditions and behavioral conditions.
Generally speaking, the divestiture business should have all the elements needed for effective competition in relevant markets, including tangible assets, intangible assets, equity, key personnel and customer agreements or supply agreements. The divestiture target can be subsidiaries, branches or business departments that participate in centralized operators.
Article 40 Where there is a risk that the commitment scheme cannot be implemented, the business operators participating in the concentration may put forward alternative schemes. Alternatives should take effect after the first option cannot be implemented, and the conditions are more stringent than the first option.
The commitment scheme is divestiture, but under any of the following circumstances, the operators participating in concentration may propose specific buyers and divestiture time in the commitment scheme:
(a) there are great difficulties in stripping;
(2) There are great risks in maintaining the competitiveness and marketability of the divestiture business before divestiture;
(3) The identity of the buyer has an important influence on whether the divestiture business can resume market competition;
(4) Other circumstances deemed necessary by the General Administration of Market Supervision.
Article 41 For the concentration of business operators that have or may have the effect of eliminating or restricting competition, the General Administration of Market Supervision may make a decision to approve the additional restrictive conditions if the commitment scheme with additional restrictive conditions proposed by the business operators participating in the concentration can effectively reduce the adverse impact of concentration on competition.
Where the operators participating in concentration fail to propose a commitment scheme with additional restrictive conditions within the prescribed time limit, or the proposed commitment scheme cannot effectively reduce the adverse impact of concentration on competition, the General Administration of Market Supervision shall make a decision prohibiting concentration of operators.
Article 42 Where there is evidence that the concentration of business operators who fail to meet the reporting standards is suspected to have or may have the effect of eliminating or restricting competition, the General Administration of Market Supervision shall conduct verification and require business operators and relevant parties to provide documents and materials.
After verification, if there is evidence that the operators who fail to meet the reporting standards have or may have the effect of eliminating or restricting competition, and the operators declare in accordance with Article 7 of these Provisions, the General Administration of Market Supervision shall conduct a review in accordance with the provisions of this Chapter.
Chapter IV Supervision and Implementation of Restrictive Conditions
Article 43 For the concentration of business operators approved with additional restrictive conditions, the obligor shall strictly fulfill the obligations stipulated in the review decision, and report the fulfillment of restrictive conditions to the General Administration of Market Supervision as required.
The General Administration of Market Supervision may supervise and inspect the obligor’s performance of restrictive conditions by itself or through the trustee. If it passes the supervision and inspection of the trustee, the General Administration of Market Supervision shall make it clear in the review decision. Trustee includes supervision trustee and stripping trustee.
The obligor refers to the operator who is required to fulfill the relevant obligations in the review decision of approving the concentration of operators with additional restrictive conditions.
Supervisory trustee refers to a natural person, legal person or other organization entrusted by the obligor and determined by the General Administration of Market Supervision, which is responsible for supervising the obligor’s implementation of restrictive conditions and reporting to the General Administration of Market Supervision.
The divestiture trustee refers to the natural person, legal person or other organization entrusted by the obligor and determined by the General Administration of Market Supervision, which is responsible for selling the divestiture business at the entrusted divestiture stage and reporting to the General Administration of Market Supervision.
Article 44 If the trustee passes the supervision and inspection, the obligor shall submit the supervision trustee to the General Administration of Market Supervision within 15 days from the date when the General Administration of Market Supervision makes the examination decision. If the restrictive condition is divestiture, the obligor shall submit the candidate for divestiture trustee to the General Administration of Market Supervision 30 days before entering the entrusted divestiture stage. The trustee shall meet the following requirements:
(a) independent of the obligor and the buyer of the divestiture business;
(2) Having a professional team to perform the duties of the trustee, and the team members shall have the professional knowledge, skills and relevant experience needed to supervise the restrictive conditions;
(3) Being able to put forward a feasible work plan;
(4) It has not been punished in the process of being a trustee in the past five years;
(5) Other requirements put forward by the General Administration of Market Supervision.
After the General Administration of Market Supervision evaluates and determines the trustee, the obligor shall sign a written agreement with the trustee to clarify their respective rights and obligations, and report to the General Administration of Market Supervision for approval. The trustee shall perform his duties diligently and dutifully. The obligor shall pay remuneration to the trustee and provide necessary support and convenience for the trustee.
Article 45 If the additional restrictive condition is divestiture, the divestiture obligor shall, within the time limit specified in the review decision, find a suitable divestiture buyer by himself, sign a sale agreement, and complete the divestiture after reporting to the General Administration of Market Supervision for approval. If the divestiture obligor fails to complete the divestiture within the prescribed time limit, the General Administration of Market Supervision may require the obligor to entrust the divestiture trustee to find a suitable divestiture buyer within the prescribed time limit. The buyer of divestiture business shall meet the following requirements:
(a) independent of the operators involved in concentration;
(2) Having the necessary resources and capabilities and being willing to use the divestiture business to participate in market competition;
(3) Obtaining the approval of other regulatory agencies;
(4) It is not allowed to purchase divestiture business by financing from the operators participating in concentration;
(five) other requirements put forward by the General Administration of Market Supervision according to the specific circumstances of the case.
When the buyer has or can obtain some assets or rights and interests in the divestiture business from other channels, he may apply to the General Administration of Market Supervision for necessary adjustment of the scope of the divestiture business.
Article 46 In principle, the obligor shall submit to the General Administration of Market Supervision for examination at least three candidates for supervision trustee, divestiture trustee and divestiture buyer. Under special circumstances, with the consent of the General Administration of Market Supervision, there may be less than three such candidates.
The General Administration of Market Supervision shall review the trustee and entrustment agreement, the divestiture buyer and the sale agreement submitted by the obligor to ensure that they meet the requirements of the review decision.
If the restrictive condition is divestiture, the time spent in the above review by the General Administration of Market Supervision shall not be included in the divestiture period.
Article 47 If the review decision does not stipulate the time limit for self-divestiture, the divestiture obligor shall find a suitable buyer and sign a sale agreement within six months from the date of the review decision. Upon the application of the divestiture obligor and explanation of the reasons, the General Administration of Market Supervision may, at its discretion, extend the period of self-divestiture, but the extension shall not exceed three months.
If the review decision does not stipulate the term of entrusted divestiture, the divestiture trustee shall find a suitable buyer and sign a sale agreement within six months from the date of entrusted divestiture.
Article 48 The divestiture obligor shall sign a sale agreement with the buyer after the General Administration of Market Supervision has examined and approved the buyer and the sale agreement, and transfer the divestiture business to the buyer within three months from the date of signing, and complete the relevant legal procedures such as ownership transfer. Upon application by the divestiture obligor and explanation of reasons, the General Administration of Market Supervision may extend the term of business transfer as appropriate.
Article 49 If the divestiture business purchased by the buyer approved by the General Administration of Market Supervision meets the reporting standards, the operator who has obtained the control right shall report it to the General Administration of Market Supervision as a new operator. Before the General Administration of Market Supervision makes a review decision, the divestiture obligor shall not sell the divestiture business to the buyer.
Article 50 Before the divestiture is completed, the divestiture obligor shall perform the following obligations in order to ensure the continuity, competitiveness and marketability of the divestiture business:
(1) Maintain the independence between the divestiture business and its reserved business, and take all necessary measures to manage the divestiture business in the most suitable way;
(2) Do not commit any acts that may adversely affect the divestiture business, including hiring key employees of the divestiture business and obtaining business secrets or other confidential information of the divestiture business;
(3) Designate a special manager to manage the divestiture business. The administrator shall perform his duties under the supervision of the supervisory trustee, and his appointment and replacement shall be agreed by the supervisory trustee;
(four) to ensure that potential buyers can obtain sufficient information about the divestiture business in a fair and reasonable way, and evaluate the commercial value and development potential of the divestiture business;
(5) Providing necessary support and convenience to the buyer according to his requirements to ensure the smooth handover and stable operation of the stripping business;
(6) hand over the stripping business to the buyer in time and perform relevant legal procedures.
Article 51 A supervisory trustee shall perform the following duties under the supervision of the General Administration of Market Supervision:
(a) to supervise the obligor to fulfill the obligations stipulated in these Provisions, the review decision and the relevant agreements;
(2) Evaluate the buyer recommended by the divestiture obligor and the sale agreement to be signed, and submit the evaluation report to the General Administration of Market Supervision;
(3) To supervise the implementation of the agreement on the sale of divestiture business and submit supervision reports to the General Administration of Market Supervision on a regular basis;
(four) to coordinate the disputes between the stripping obligor and the potential buyer on the stripping matters;
(5) Submit other reports related to the obligor’s performance of restrictive conditions as required by the General Administration of Market Supervision.
Without the consent of the General Administration of Market Supervision, the supervision trustee shall not disclose all kinds of reports and related information submitted to the General Administration of Market Supervision in the course of performing his duties.
Article 52 In the entrusted divestiture stage, the divestiture trustee is responsible for finding a buyer for the divestiture business and reaching a sale agreement.
The divestiture trustee has the right to sell the divestiture business without reserve price.
Article 53 The examination decision shall stipulate the time limit for attaching restrictive conditions.
According to the review decision, if the restrictive conditions are automatically lifted when they expire, the restrictive conditions will be automatically lifted if the obligor does not violate the review decision after verification by the General Administration of Market Supervision. If the obligor violates the review decision, the General Administration of Market Supervision may appropriately extend the time limit for attaching restrictive conditions and announce it to the public in a timely manner.
According to the review decision, if the obligor needs to apply for cancellation after the restrictive conditions expire, the obligor shall submit a written application and explain the reasons. If the General Administration of Market Supervision decides to lift the restrictive conditions after evaluation, it shall announce it to the public in a timely manner.
The restrictive condition is divestiture. If the obligor fulfills all obligations after verification by the General Administration of Market Supervision, the restrictive condition will be automatically lifted.
Article 54 During the effective period of the examination decision, the General Administration of Market Supervision may re-examine, change or terminate the restrictive conditions on its own initiative or at the request of the obligor. If the General Administration of Market Supervision decides to change or lift the restrictive conditions, it shall announce it to the public in a timely manner.
When changing or lifting restrictive conditions, the General Administration of Market Supervision shall consider the following factors:
(a) whether there are major changes in centralized trading parties;
(2) Whether there has been a substantial change in the competitive situation in the relevant market;
(3) Whether it is unnecessary or impossible to implement restrictive conditions;
(4) Other factors that should be considered.
Chapter V Investigation on illegal concentration of business operators
Article 55 If the concentration of business operators reaches the declaration standard, and the business operators fail to declare the concentration, or implement the concentration without approval after the declaration, or violate the examination decision, an investigation shall be conducted in accordance with the provisions of this chapter.
Operators who fail to meet the reporting standards are concentrated, and if the operators fail to report in accordance with Article 7 of these Provisions, the General Administration of Market Supervision shall conduct an investigation in accordance with the provisions of this Chapter.
The term "concentration of implementation" as mentioned in these Provisions refers to the act of gaining control over other operators or exerting decisive influence on them, including but not limited to completing the registration of change of shareholders or rights, appointing senior management personnel, actually participating in business decision-making and management, exchanging sensitive information with other operators, and substantially integrating business.
Article 56 Any unit or individual has the right to report to the General Administration of Market Supervision on the suspected illegal concentration of business operators. The General Administration of Market Supervision shall keep confidential the informants.
If the report is in written form, and provides the basic information of the informant and the reported person, relevant facts and evidence suspected of illegally implementing the concentration of business operators, etc., the General Administration of Market Supervision shall conduct necessary verification.
Article 57 If there are preliminary facts and evidence that show that there is suspicion of illegal concentration of business operators, the General Administration of Market Supervision shall file a case and notify the business operators under investigation in writing.
Article 58 The business operators under investigation shall, within 30 days from the date when the notice of filing a case is served, submit to the General Administration of Market Supervision relevant documents and materials, such as whether they belong to the concentration of business operators, whether they meet the reporting standards, whether they declare, whether they are illegally implemented, etc. Where article 19 of these Provisions is involved, it shall be applied by reference.
Other operators or individuals involved in the suspected illegal concentration of operators shall provide relevant documents and materials as required and cooperate with the investigation by the General Administration of Market Supervision.
Article 59 The General Administration of Market Supervision shall, within 30 days from the date of receiving the documents and materials submitted by the business operators under investigation in accordance with Article 58 of these Provisions, conduct a centralized preliminary investigation on whether the transactions under investigation are illegal.
In case of illegal concentration of business operators, the General Administration of Market Supervision shall make a decision on further investigation and notify the business operators under investigation in writing. Business operators should stop illegal activities.
If the concentration of business operators is not illegal, the General Administration of Market Supervision shall make a decision not to conduct further investigation and notify the business operators under investigation in writing.
Article 60 If the General Administration of Market Supervision decides to conduct further investigation, the operators under investigation shall submit relevant documents and materials to the General Administration of Market Supervision in accordance with the provisions of these Provisions on centralized declaration documents and materials of operators within 30 days from the date of receiving the written notice from the General Administration of Market Supervision.
The General Administration of Market Supervision shall complete the further investigation within 120 days from the date of receiving the documents and materials submitted by the investigated business operators that conform to the provisions of the preceding paragraph.
In the further investigation stage, the General Administration of Market Supervision shall, in accordance with the Anti-monopoly Law and these Provisions, evaluate whether the transaction under investigation has or may have the effect of excluding or restricting competition.
Article 61 During the investigation, the business operators and interested parties under investigation have the right to state their opinions. The General Administration of Market Supervision shall verify the facts, reasons and evidence put forward by the operators and interested parties under investigation.
Article 62 Before making a decision on administrative punishment, the General Administration of Market Supervision shall inform the business operators under investigation of the facts, reasons and basis for making the decision on administrative punishment.
The business operators under investigation shall submit written opinions within the time limit prescribed by the General Administration of Market Supervision. The written opinions shall include relevant facts and evidence.
Article 63 The General Administration of Market Supervision shall make a decision on the illegal concentration of business operators according to law and make it public.
Article 64 Where the concentration of business operators is illegally implemented and the General Administration of Market Supervision decides to take necessary measures to restore the state before concentration, the supervision and implementation of relevant measures shall be implemented with reference to Chapter IV of these Provisions.
Chapter VI Legal Liability
Article 65 A business operator who violates the provisions of the Anti-monopoly Law to implement concentration shall be punished in accordance with the provisions of Article 58 of the Anti-monopoly Law.
The "previous year" as mentioned in Article 58 of the Anti-monopoly Law refers to the previous fiscal year on the date of the illegal concentration.
Article 66 If the declarant conceals relevant information or provides false materials, the General Administration of Market Supervision will not file or cancel the filing of the centralized declaration by the operator, and may impose penalties in accordance with Article 62 of the Anti-monopoly Law.
The declaration agent shall examine the declaration documents and materials, and shall be punished in accordance with the provisions of the preceding paragraph if it conceals relevant information or provides false materials. If the circumstances are serious, the General Administration of Market Supervision may decide not to accept the declaration of its agent.
Article 67 When determining the specific fine amount according to the Anti-monopoly Law and Articles 65 and 66 of these Provisions, the General Administration of Market Supervision shall, in accordance with the requirements of Article 59 of the Anti-monopoly Law, consider the nature, extent, duration of the illegal act and the situation of eliminating the consequences of the illegal act.
Where a party voluntarily reports an illegal act that has not been mastered by the General Administration of Market Supervision, or voluntarily eliminates or mitigates the harmful consequences of the illegal act, the General Administration of Market Supervision shall, according to Article 32 of the Administrative Punishment Law, give a lighter or mitigated punishment as appropriate.
Article 68 Where the General Administration of Market Supervision imposes administrative penalties on business operators in accordance with the Anti-monopoly Law and Articles 65 and 66 of these Provisions, it shall be recorded in the credit records in accordance with Article 64 of the Anti-monopoly Law and relevant provisions of the State and publicized to the public.
Article 69 If the trustee fails to perform his duties as required, the General Administration of Market Supervision shall order him to make corrections; If the circumstances are serious, the obligor may be required to replace the trustee, and the trustee may be fined not more than 200,000 yuan.
Article 70 If the buyer of the divestiture business fails to fulfill its obligations according to the regulations, which affects the implementation of restrictive conditions, the General Administration of Market Supervision shall order it to make corrections and may impose a fine of less than 200,000 yuan.
Article 71 In case of violation of Chapter IV of the Anti-monopoly Law and these Provisions, if the circumstances are particularly serious, the impact is particularly bad, and the consequences are particularly serious, the General Administration of Market Supervision may determine the amount of the fine in Articles 58 and 62 of the Anti-monopoly Law and Articles 65 and 66 of these Provisions.
Article 72 Any functionary of an anti-monopoly law enforcement agency who abuses his power, neglects his duty, engages in malpractices for selfish ends or divulges state secrets, business secrets, personal privacy and personal information that he has learned in the course of law enforcement shall be dealt with in accordance with relevant regulations.
During the investigation, the anti-monopoly law enforcement agencies found clues about public officials’ duty violations and duty crimes, and should promptly hand them over to the discipline inspection and supervision organs with jurisdiction.
Chapter VII Supplementary Provisions
Article 73 The General Administration of Market Supervision and other units and individuals shall be obliged to keep confidential the known business secrets, undisclosed information, confidential business information, personal privacy and personal information, except those that should be disclosed according to laws and regulations or with the prior consent of the obligee.
Article 74 In the process of examination or investigation, the General Administration of Market Supervision may organize a hearing. The hearing procedure shall be implemented in accordance with the Interim Provisions on the Procedures for Administrative Licensing of Market Supervision and Administration and the Measures for Hearing Administrative Punishment of Market Supervision and Administration.
Article 75 For written documents that need to be delivered to business operators, the delivery method shall be implemented with reference to the Provisions on Administrative Punishment Procedures for Market Supervision and Administration.
Article 76 These Provisions shall come into force as of _ _ _ 2022.
Explanation on the Provisions on Centralized Examination of Operators (Draft for Comment)
Supporting the Anti-Monopoly Law (Amendment), the General Administration of Market Supervision revised the Interim Provisions on Centralized Examination of Operators (hereinafter referred to as the Interim Provisions) and formed the Provisions on Centralized Examination of Operators (Draft for Comment) (hereinafter referred to as the Provisions). The relevant information is as follows:
First, the necessity of revision
(A) the inherent requirements of strengthening the supply of basic systems.The Anti-monopoly Law (Amendment) puts forward higher requirements for further improving the centralized review system of operators, including improving the centralized classification and grading review system of operators, adding the centralized stop system of operators, improving the review and investigation of operators who fail to meet the reporting standards, and strengthening the legal responsibility for illegally implementing the centralized behavior of operators. As a supporting regulation, it is necessary to revise and implement the relevant requirements of the Anti-Monopoly Law (Amendment) to provide a fair, transparent and predictable institutional environment for market participants.
(two) to adapt to the objective needs of economic development and market operation.China has become a super-large-scale market with a total economic output of 114 trillion, 150 million market participants and 1.4 billion consumers. The degree of marketization and participation in global economic globalization have undergone profound changes, and the competition and cooperation of market forces have been profoundly adjusted. Strengthen the centralized anti-monopoly review of operators, give full play to the function of prevention in advance, effectively prevent enterprises from distorting the market competition structure through mergers and acquisitions, resulting in the effect of eliminating and restricting competition, shift regulatory resources from stopping monopoly to preventing monopoly, improve regulatory efficiency, and prevent the loss of overall social welfare due to monopolistic behavior.
(3) The inevitable requirement of promoting the construction of a high-standard market system.Since the implementation of the centralized anti-monopoly review system for business operators in China, it has been committed to improving the quality and efficiency of the review, and has played a role in helping enterprises optimize and reorganize, transform and upgrade their economies, and safeguard the interests of consumers. Through this revision, we will further standardize and optimize the process of centralized anti-monopoly declaration and review by operators, improve the quality and efficiency of law enforcement, reduce the burden on operators, continuously stimulate market vitality and social creativity, and make centralized anti-monopoly review by operators better serve the high-quality development of our economy and society.
Second, the main principles of the revision
(1) Implementing the spirit of the revision of the anti-monopoly law.Accurately grasp the latest institutional requirements of the Anti-Monopoly Law, focus on the relevant requirements and provisions of the Anti-Monopoly Law on improving the centralized examination system for operators, and make a good connection with the superior law system.
(2) Adhere to the problem orientation.Summarize the experience of centralized review of operators, respond to the problems reflected in practice, such as the definition of operators participating in concentration and the judgment of implementing concentration, and enhance the transparency of the system of centralized rules for operators.
(3) Adhere to service development.Improve the centralized classification and grading review system for operators, optimize the centralized anti-monopoly review process for operators, and improve the quality and efficiency of review. Refine the clock-stopping system, enhance the operability and predictability of the legal system, reduce the institutional cost of enterprises, and create a fair and predictable institutional environment.
(4) Insist on eclecticism.On the basis of extensively soliciting opinions from all parties, we will compare and study the experience and practices of other jurisdictions, and learn from the latest developments of legislative enforcement in other jurisdictions to ensure the scientific and effective legal system.
Third, the main work carried out
In accordance with the requirements of scientific legislation, democratic legislation, legal legislation and open-door legislation, the General Administration of Market Supervision has solidly promoted the revision work through legislative research, theoretical research and soliciting opinions.
The first is to carry out legislative research.Comprehensively sort out the practical experience of centralized review of operators in China, and strengthen the research on the new trend of centralized review system and law enforcement cases of operators in major foreign jurisdictions, and refine and summarize mature experiences and practices.
The second is organizational theory research.Entrust experts from the Expert Advisory Group of the State Council Anti-monopoly Committee to carry out research on the optimization of centralized anti-monopoly review system for operators, so as to provide theoretical guarantee for revision.
The third is to fully listen to the opinions of all parties.Widely solicit opinions from relevant departments, experts and scholars, law firms and enterprises.
IV. Main contents of the revision
There are 65 existing Interim Provisions, and this revision has revised 22 articles, added 12 articles and deleted 1 article, making a total of 76 articles. The revised contents mainly involve the following six aspects:
(1) The system of stopping the clock during the period of centralized review by operators.According to the relevant provisions of the Anti-monopoly Law (Amendment), the detailed rules such as starting conditions, recovery conditions and application procedures are formulated in view of the three situations in which the calculation period of centralized review of operators is suspended.
(two) review and investigation on the concentration of operators who do not meet the reporting standards.According to the Anti-Monopoly Law (Amendment), if the concentration of business operators fails to meet the reporting standards, but there is evidence to prove that it has or may have the effect of excluding or restricting competition, the General Administration of Market Supervision may require the business operators to declare. The "Regulations" further clarify that the supporting provisions of the review or investigation procedures are applicable to operators who declare or not declare as required.
(three) on the illegal implementation of centralized investigation of operators.The first is to further clarify the concept of "implementation concentration". The second is to stipulate the obligation of the third party to cooperate with the investigation. Third, if the General Administration of Market Supervision decides to take necessary measures to restore the pre-concentration state for illegal concentration of business operators, the relevant measures shall be supervised and implemented with reference to additional restrictive conditions.
(four) on the substantive standards and procedural provisions.The first is to clarify the definition of "operators participating in concentration" and the entity standards such as the previous fiscal year. The second is to change the "filing" procedure of centralized anti-monopoly declaration by operators into the "formal acceptance" procedure.
(five) on improving the quality and efficiency of the review.First, it is proposed to improve the centralized classification and grading review system for operators, strengthen law enforcement in important areas such as the national economy and people’s livelihood, and regularly evaluate the review effect. The second is to enrich the types of additional restrictive conditions, include data stripping into structural conditions, and include maintaining independence, modifying platform rules or algorithms, and not reducing interoperability into behavioral conditions.
(6) About legal liability.First, the legal responsibility of the declaration agent is increased, and the illegal responsibility of concealing or providing false materials is clarified. If the circumstances are serious, the General Administration of Market Supervision may decide not to accept the declaration of its agent. Second, according to the Anti-Monopoly Law (Amendment), the amount of fines for illegal concentration of business operators, refusal and obstruction of law enforcement has been increased. The third is to strengthen the legal responsibility of the trustee and the buyer of the divestiture business for failing to fulfill their obligations as required.
Beijing News Cartography/Xu Wei
