Guidelines on Antitrust Compliance with Concentration of Business Operators Released
ISSUING AUTHORITY:
The State Administration for Market Regulation
DATE OF ISSUANCE:
September 11, 2023
EFFECTIVE DATE:
September 11, 2023
In order to guide enterprises to carry out the main responsibilities of anti-monopoly compliance of concentration of business operators, improve the awareness and management level of anti-monopoly compliance of concentration of business operators, and promote the development of a socialist market economy, the State Administration for Market Regulation issued the Guidelines on Anti-monopoly Compliance of Concentration of Business Operators (the “Guidelines”).
1. The Necessity and Legal Basis for Formulating the Guidelines
The Anti-Monopoly Law of the People's Republic of China was revised in 2022, and proposes to guide enterprises to operate in compliance with the law. In recent years, with the continuous deepening of the centralized supervision of business operators, the enterprises’ awareness of declaring according to law has been significantly enhanced. Some enterprises, especially small and medium-sized enterprises, still have deficiencies in compliance awareness and capacity building, and the demand for strengthening compliance guidance is relatively strong. In order to implement the decision-making and deployment of the Party Central Committee and the State Council on normalized supervision, and to serve the compliance construction of enterprises, the State Administration for Market Regulation has studied and formulated the Guidelines in accordance with the Anti-Monopoly Law of the People's Republic of China, the State Council's Provisions on Reporting Standards for Concentration of Business Operators, and the Regulations on Reviewing Concentration of Business Operators.
2. The Main Contents of the Guidelines
The full text of the Guidelines consists of 6 chapters and 35 articles, mainly including the following contents:
Chapter One, "General Provisions", clarified the purpose and basis of the Guidelines, the necessity of compliance and the scope of application of the Guidelines, and points out that the Guidelines is a specific guidance to implement the Anti-monopoly Compliance Guide for Business Operators.
Chapter Two, "Main Provisions of Reviewing Concentration of Business Operators", briefly introduced the legal provisions of the review system of concentration of business operators, as well as the legal risks and possible legal liabilities for violation of the legal provisions.
Chapter Three, "Major Compliance Risks", focused on the issues that should be carefully complied with during each stage of the concentration of business operators, mainly including whether to declare or not, when to declare, "gun jumping" after declaration, exclusion and restriction of competition, violation of review decisions, obstruction of reviewing and investigation, overseas compliance risks, etc.
Chapter Four, "Compliance Risk Management", mainly introduced how to build a specific compliance management system for concentration of business operators. In particular, it was suggested that enterprises should include compliance supervision for concentration of business operators in the decision-making process of investment and M&A, and should clarify compliance suggestions and risk response measures of compliance management departments, compliance management and key personnel.
Chapter Five, "Compliance Management Guarantee", mainly introduced how to ensure effective implementation of centralized compliance management of business operators, including compliance commitment, compliance report, compliance evaluation, compliance consultation, compliance training, compliance rewards and punishments, compliance incentives and other safeguard measures.
Chapter Six, "Supplementary Provisions", made it clear that the Guidelines is not mandatory, and enterprises can establish a compliance work system based on their own characteristics.
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