Competition & Antitrust 1
Q1：China’s Anti-Monopoly Law has been implemented about six years, as one of the three enforcement authorities, what progress the State Administration for Industry and Commerce (“SAIC”) has made over the past years?
A1: According to Ms. Ren Airong, Director General of the Antimonopoly and Anti-unfair Competition Enforcement Bureau of SAIC, the SAIC has accepted 24 cases in total during the past years, among which 23cases were accepted by provincial Administrations for Industry and Commerce under the authorization of SAIC, and 1 case accepted by the State-level SAIC (abuse of dominance investigation of Tetra Pak announced by the SAIC earlier in July).
And what the most significant progress is, on July 29, 2013, the SAIC held a press conference announcing that it has launched a publication platform for antitrust enforcement decisions. The final penalty decisions of all cases that have been closed (a total of 12) are published on SAIC’s website. Ms. Ren Airong, also mentioned the plan to promulgate the guideline and the regulation concerning IP-related antitrust issues.
This is a very welcoming effort made by the SAIC to improve transparency of its enforcement actions and will provide very valuable guidance to businesses at large.
Q2: What region and industry are these cases involved?
A2: All of the closed cases involve monopoly agreements in various provinces, such as Jiangsu, Zhejiang, Chongqing, Henan, Hunan, Yunnan, Heilongjiang, Guangdong, and Hubei, and cover a broad range of industries, including insurance, construction materials, liquefied petroleum gas, tourism, and etc.
Q 3: What are the cases that are published?
A 3: The list of the 12 cases that are published:
The Construction Materials and Construction Machinery Industry Association inLianyungang City,Jiangsu Province Arranged Companies to Undertake Monopoly Agreements
Companies in the Liquefied Petroleum Gas Industry inTaihe County,Jiangxi Province Undertook Monopoly Agreements
Used Motorcycle Companies inAnyang City,Henan Province Undertook Monopoly Agreements
LiaoningProvinceConstruction Materials Industry Association Arranged Companies to Undertake Monopoly Agreements
The Insurance Association inYongzhou City,Hunan Province Arranged Companies to Undertake Monopoly Agreements
The Insurance Association inZhangjiajie City,Hunan Province Arranged Companies to Undertake Monopoly Agreements
The Insurance Association inChangde City,Hunan Province Arranged Companies to Undertake Monopoly Agreements
The Insurance Association inChenzhou City,Hunan Province Arranged Companies to Undertake Monopoly Agreements
Concrete Companies inJiangshan City,Zhejiang Province Undertook Monopoly Agreements
The Association of Construction Projects Inspection inCixi City, Zhejiang Province Organized Companies to Undertake Monopoly Agreements
The Bricks and Ceramics Association inYibin City,Sichuan Province Arranged Companies to Undertake Monopoly Agreements
The Tourism Society ofXishuangbanna County,Yunnan Province Arranged Companies to Undertake Monopoly Agreements
Q4: What efforts did the SAIC do to promulgate IP-related antitrust guideline and regulation?
A4: The SAIC has been working on an IP-related antitrust guideline for a few years. However, the most recent draft promulgated earlier this year changes the title from “Guideline” to “Regulation”. Some speculate that the change is prompted by difficulties in getting the other two Chinese antitrust enforcement agencies (i.e., the National Development and Reform Commission and the Ministry of Commerce) aligned. The SAIC’s announcement appears to suggest that the SAIC has not given up the idea of publishing the guideline although the priority may be to cause the departmental regulation to be published sooner.
Q5: What’s the difference between “Guideline” and “Regulation”?
A5: From the legal perspective, a guideline does not have binding legal force; yet if it is issued in the name of the Anti-monopoly Commission of the State Council (like the case for the Guideline on Definition of Relevant Market), it shall reflect the consensus reached by all three enforcement agencies. On the other hand, the departmental regulation is legally binding although it only binds the SAIC and its local arms.