2023 China Antitrust Year in Review

In 2023, China’s anti-monopoly legislation has gone through significant progresses and achievements, the antitrust enforcement and judicial litigation activities have been continuously active, and the importance of antitrust compliance for enterprises has become increasingly prominent. Specifically, the following trends have emerged:

● In the legislation area, the State Administration for Market Regulation ("SAMR") released and implemented five supporting regulations of the Anti-Monopoly Law ("AML"), namely, the Provisions on Suppression of the Abuse of Administrative Power to Exclude and Restrict Competition, the Provisions on Prohibition of Monopoly Agreements, the Provisions on Prohibition of Abuse of Market Dominance, the Provisions on the Review of Concentrations of Undertakings, and the Provisions on Prohibiting Abuse of Intellectual Property Rights to Eliminate or Restrict Competition, and issued the Antitrust Compliance Guidelines on Concentration of Undertakings[1]. The General Office of the Anti-Monopoly and Anti-Unfair Competition Commission of the State Council ("Anti-Monopoly Commission") and the SAMR released a notice, establishing formally a system of “Three Documents and One Letter” (i.e., the Reminder Letter, the Notice of Regulatory Talk, the Notice on Legislative Investigation, and Decision of Administrative Penalty(Business Entity)/Administrative Recommendation(Administrative Organ)) for anti-monopoly law enforcement; and enacted and issued, on January 10, 2024, the Antitrust Guidelines on Industry Associations[2]. The Executive Meeting of the State Council adopted the Provisions of the State Council on the Standard for Declaration of Concentration of Business Operators[3]. In addition, legislative activities at the local level were also rather active. For instance, the Beijing Administration for Market Regulation ("Beijing AMR") issued the Beijing Guidelines on Anti-Monopoly Compliance; Shanghai Anti-Mon opoly and Fair Competition Commission Office ("Shanghai Anti-Monopoly Office") published the Notice on Enhancing the Level of Regularized Supervision and Guiding and Encouraging Platform Enterprises to Establish a Competition Compliance Management System and the Guidelines for Competition Compliance Evaluation of Internet Platform Enterprises, the Shanghai Administration for Market Regulation ("Shanghai AMR") and the Shanghai Administration for Drug collectively issued the Compliance Guidelines for E-tailing Platforms in Shanghai, the Compliance Guidelines for Online Catering Service Platforms in Shanghai, and the Shanghai AMR issued the Compliance Guidelines for Live Streaming Marketing Activities in Shanghai.

● In the enforcement area, (1) with respect to merger review, in 2023, the SAMR concluded 797 cases, of which 786 were cleared. This marks a decrease of approximately 2.02% compared to 2022. Additionally, 4 cases were cleared conditionally, involving the sectors of chemicals, communications technology, and pharmaceuticals. (2) With respect to cartel agreements and abuse of market dominance, in 2023, the enforcement agency published 19 penalty decisions on monopoly agreements and abuse of dominance. These decisions mainly involved sectors that directly impact people's livelihoods, such as public utilities, pharmaceuticals, and building materials. It is anticipated that these sectors will continue to be the primary focus of regulatory enforcement in 2024.

● In the judicial area, in 2023, the Supreme People’s Court (the "SPC") announced several significant judicial cases involving monopolistic conduct. These cases have provided valuable guidance and instructions for the interpretation of laws and the analysis of monopolistic behavior in judicial practice. It is anticipated that antitrust and competition litigation will continue to intensify, serving as a powerful means for companies to defend their rights and interests and pursue their commercial appeals.

In 2024, the SAMR will continue to address improper market competition and intervention, with the goal of enhancing stability and predictability in regulatory activities. This will include promoting the Regulations on Fair Competition Review, conducting thorough law enforcement on anti-monopoly and anti-unfair competition in sectors that affect people's livelihoods, refining and perfecting the rules and regulations for these issues, and increasing awareness and compliance among operators. Additionally, efforts will be made to promote fair competition and innovation in the platform economy, improve regularized supervision, and motivate operators on these platforms. The effectiveness of supervision and law enforcement will also be a priority, with a focus on monitoring and implementing the "Three Documents and One Letter" system, standardizing administrative penalties, and improving the overall regulatory system and rules.[4]

Legislation Area

In 2023, five supporting regulations of the AML, namely, the Provisions on Suppression of the Abuse of Administrative Power to Exclude and Restrict Competition, the Provisions on Prohibition of Monopoly Agreements, the Provisions on Prohibition of Abuse of Market Dominance, the Provisions on the Review of Concentrations of Undertakings, and the Provisions on Prohibiting Abuse of Intellectual Property Rights to Eliminate or Restrict Competition were published and implemented, the Antitrust Compliance Guidelines on Concentration of Undertakings was issued; the anti-monopoly law enforcement system of “Three Documents and One Letter” was formally established; the Antitrust Guidelines on Industry Associations was issued and came into effect on January 12, 2024 after enactment; the Provisions of the State Council on the Standard for Declaration of Concentration of Business Operators was issued and came into effect on January 26 after enactment. A number of provinces and municipalities issued compliance guidelines related to anti-monopoly and unfair competition applicable to their respective jurisdictions.

Key legislations and their highlights in 2023 are summarized below.

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Enforcement Area

● Merger Control Review

According to statistics from the SAMR[6], in 2023, the SAMR concluded 797 merger cases, of which 786 were approved, including 782 cases approved without conditions and 4 cases approved conditionally, and 11 case were withdrawn by the notifying parties after the acceptance. The average time taken to conclude cases was 25.7 days.

With respect to case types, the vast majority of cases were subject to simplified procedures and were concluded at stage I: 707 cases were concluded under simplified procedures, accounting for approximately 90% of all approved cases, and 79 cases were concluded under normal procedures, accounting for approximately 10% of all approved cases; in addition, 698 cases were concluded at stage I, accounting for approximately 89% of all approved cases.

In terms of the delegation of merger review to authorities in pilot areas, in 2023, the Administration for Market Regulation (“AMR”) of five provinces and municipalities, under delegation, concluded 352 simplified cases in total, of which, the Shanghai AMR concluded 157 cases, ranking the first and accounting for about 22% of all concluded cases, followed by the Beijing AMR, the Guangdong AMR, the Chongqing AMR and the Shanxi AMR concluding 75 cases, 61 cases, 49 cases and 10 cases, respectively.

With regard to the parties to the concentrations, t the majority of cases (56%) involve domestic enterprises, with a total of 437 cases. This is followed by 253 cases (32%) involving foreign enterprises, and 92 cases (12%) involving both domestic and foreign enterprises. Additionally, state-owned enterprises account for 49% of all cases (388 cases), while foreign enterprises make up 46% (361 cases) and private enterprises make up 38% (296 cases).

As regards industry distribution, the cases are dominant by industrial reorganization in the sectors of real economy and sectors concerning people’s livelihood. The number of concluded cases in the real economy manufacturing industry reached its peak in 2023, with a total of 291 cases, accounting for 37% of all cases. Among these, the largest number of cases involved chemical materials and products, with a total of 53 cases. Other industries with a significant number of cases include automobile manufacturing, computer and electronic equipment manufacturing, and pharmaceutical manufacturing. Other than manufacturing industry, there were also a higher percentage of cases in industries such as wholesale and retail trade, transportation, production and supply of water, electricity, gas, and heat, financial services, real estate, and IT services.

In terms of transaction types, horizontal concentration cases are the most numerous, totaling 417 cases and accounting for 53% of all cases. Vertical concentration cases, totaling 311, account for 40% of all cases, while mixed concentration cases, totaling 191, account for 24% of all cases.

With regard to transaction types, there are 445 cases of equity acquisition, accounting for 56% of all cases, and 270 cases of establishment of joint ventures accounting for 34% of all cases.

In terms of the industries involved in conditionally approved cases, two cases involve the industry of information and communication technology, one case involves the industry of chemical raw materials and one case involves the pharmaceutical industry.

○ Statistics on the Merger Control Cases from 2018 to 2023

● Cases with Conditional Clearance in 2023

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● Monopoly Agreements and Abuse of Market Dominance

Throughout 2023, a total of 19 cases on monopoly agreements and abuse of market dominance were decided by local AMRs and subject to administrative measures, involving sectors of active pharmaceutical ingredients and drugs, insurance, building materials, public utilities such as water supply, gas supply, etc. These cases are summarized below:

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Judicial Area

In 2023, the SPC and other courts announced several noteworthy judicial cases involving monopolistic behaviors. These cases have offered valuable guidance and instructions on jurisdiction, rulings, and substantive analysis of monopolistic conduct from a legal interpretation and judicial practice standpoint. The following is a summary of the important judicial cases involving monopolistic conduct in 2023:

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If you are interested in further information regarding China antitrust matters, please feel free to contact Qian Xiaoqiang Lvshi (qianxiaoqiang@haiwen-law.com) or Lin Xixiang Lvshi (linxixiang@haiwen-law.com) or other attorneys of Haiwen & Partners.

Slide up to review comments

[1] For more details, please see: https://www.gov.cn/zhengce/zhengceku/202309/content_6903364.htm

[2] For more details, please see: https://www.samr.gov.cn/zw/zfxxgk/fdzdgknr/fldzfys/art/2024/art_3ce3a7fec76146cfb8a7927db10683b2.html

[3] For more details, please see: https://www.gov.cn/zhengce/content/202401/content_6928387.htm

[4] For more details, please see: https://mp.weixin.qq.com/s/5j1SxK7KdexhUmy9YA7Cjg

[5] For more details, please see: https://mp.weixin.qq.com/s/4h7zGnDxbbGNVjQQpGKmPg

[6] For more details, please see: https://mp.weixin.qq.com/s/evw4zd3Id3iSUIVd0wGfjw

[7] Article 60 of the Amended Anti-Monopoly Law (2022).

Author

QIAN, Xiaoqiang

Dispute Resolution，Anti-trust & Competition，Intellectual Property

LIN, Xixiang

Mergers & Acquisitions，Private Equity，Anti-trust & Competition