1. Introduction

Year 2019 was the first full calendar year for the State Administration for Market Regulation (SAMR) to work as China’s uniform antitrust enforcement agency following the institutional reform of the state’s administrative departments launched in March 2018. Generally speaking, legislations have become more consistent and the publication of decisions have become more timely.

In 2019, the SAMR seemed to have devoted much of its efforts on legislation drafting and merger review work. On the other hand, the SAMR’s provincial-level subsidiaries, the provincial administrations for market regulation (AMR) took on most of the investigatory work against conduct violations (monopoly agreements and abuse of dominance) concluded in 2019.

In May 2019, against the backdrop of the trade tensions with the US, China quoted its Anti-Monopoly Law (AML) as one of the legal grounds for the building of a “Unreliable Entities List” which purportedly would include foreign enterprises, organizations or individuals who foreclose or refuse to supply to Chinese enterprises for “non-commercial purposes”. Thus far, such a list has not been published. But China remains a jurisdiction in which its AML enforcement activities, particularly those involving foreign entities, are much observed.

2.  Legislation

Year 2019 witnessed the publication for public comments of a number of draft legislations, including:

•  Draft Revisions to the Anti-Monopoly Law (“AML Draft Revisions”)

•  Draft Anti-Monopoly Compliance Guide for Undertakings

•  Draft Interim Measures of the Administration for Market Regulation for Handling Complaints and Whistle-blows

• Draft Revisions to the Interim Measures of the Administration for Market Regulation for Rewarding Whistle-blowers of Key Violations

•  Draft Interim Provisions on the Review of Concentration of Undertakings

AML Draft Revisions

Published for public comments on 2 January 2020, the AML Draft Revisions proposed a number of important changes to the current AML which has been in force since 1 August 2008. In short, the AML Draft Revisions sought to significantly raise the cap of fine for specific violations such as gun-jumping, non-compliance with a conditional clearance decision, obstruction of investigation, etc. It also sought to introduce the legal foundation for criminal sanctions on antitrust conduct violations. If adopted, these proposed changes would strengthen the deterrence power of the AML. There is yet no clear timetable for the finalisation of the AML Draft Revisions and promulgation of the revised AML.

Three Interim Provisions

In 2019, the SAMR continued its efforts on unifying substantive and procedural rules previously published by its predecessors (namely the NDRC, SAIC and MOFCOM). On 26 June 2019, it published the following 3 government department-level regulations to supplement the AML, and these have entered into force on 1 September 2019.

• Interim Provisions on the Prohibition of Monopoly Agreements

• nterim Provisions on the Prohibition of Abuse of Market Dominance

• Interim Provisions on the Suppression of Abuse of Administrative Power to Exclude and Restrict Competition

Particularly, the first 2 pieces of legislation provided further details on the identification of conduct violations and justifications, and the application of leniency and commitment systems. However, the initially proposed “safe harbour” for monopoly agreements disappeared from the final draft.

Compliance Guidelines

The Anti-monopoly Compliance Guidelines for Undertakings (draft for comments published in November 2019) is a new addition to the family of antitrust guidelines China already published or seeks to publish. Its publication resonates with compliance guidelines for undertakings published by the Zhejiang AMR and Shanghai AMR respectively in July and December 2019.

AML Guidelines

So far, 11 state-level guidelines and draft guidelines have been published covering the following topics respectively. It is unclear when the guidelines on leniency, exemptions, motor vehicle, and intellectual property rights will be published, despite earlier statements of the SAMR that they would be published within 2019.

• Market definition (in force)

• Price-related conducts by industry associations (in force)

• Pricing conducts of undertakings in relation to drugs in short supply and active pharmaceutical ingredients (in force)

• Fair competition review third-party assessment (in force)

• Leniency (draft)

• Commitments (draft)

• Exemptions (draft)

• Identification of illicit gains and setting fines (draft)

• Motor vehicle industry (draft)

• Abuse of intellectual property rights (draft)

• Anti-monopoly Compliance Guide for Undertakings (draft)

3. Cartel

Cartel remains an area with stable enforcement activities in China. In 2019, there were 8 published infringement decisions on cartel conducts. All of the undertakings concerned were Chinese companies and these cases all concern the so-called “sectors that are closely related to the people’s livelihood”, such as public utility, construction materials, restaurants, and motor vehicle. See Table 1 for a list of cartel cases concluded in China in 2019.