China Antitrust Monthly Update: November 2022

Legislation

The Council of State announces Independent Business Development Promotion Regulations and emphasizes that platform operators should not impose unreasonable conditions

On October 25, 2022, in order to encourage, support and guide the healthy development of the individual economy, to safeguard the legitimate rights and interests of individual entrepreneurs, to stabilize and develop urban and rural employment and to make fully play the important role of individual entrepreneurs in the national economy and social development, the State Council announced the completion Regulation on the promotion of the development of individual entrepreneurswhich will come into force on November 1, 2022.

SAMR publishes Guidance Notice on Regulation of Administrative Penalty Discretion for Market Regulation

On October 8, in accordance with the Administrative Penalty Law of the People’s Republic of China and other relevant laws, regulations, rules and provisions of the state and in the light of the actual labor practices of market regulation for the purpose of regulating the administrative penalty for market regulation, to safeguard the lawful exercise of power discretion on administrative punishment by market regulatory authorities and to protect the rights and legitimate interests of natural persons, legal persons and other organizations, the State Administration for Market Regulation (“SAMR”) publishes Guidance Notice on the Regulation of Administrative Penalty Discretion for Market Regulation.

Authorities

SAMR to recruit 11 more anti-monopoly officers

On October 25, 2022, the National Civil Service Administration issued an announcement on “the employment of civil servants in the 2023 exam”. In the announcement, SAMR’s Antitrust Enforcement Division I, Antitrust Enforcement Division II, and Competition Policy and Coordination Division of SAMR plan to hire 11 officials.

Chongqing AMR issues guideline for antimonopoly review of corporate mergers

On October 19, the Chongqing Administration for Market Regulation (AMR) announced the guideline for anti-monopoly review of business mergers in Chongqing. The guide is divided into three parts: a brief guide, the basic requirements and the trading application process, which clarifies the acceptance scope of the trading application, application time, preparation materials and the content of the negotiation, etc.

SAMR appoints antitrust director

On October 14, SAMR appointed Xinjian Xu as director of SAMR’s Antimonopoly and Regulatory Division.

Shandong AMR Issuing Tender for Anti-monopoly Evidence Collection Equipment Procurement Project

On October 12, Shandong AMR issued an announcement on the procurement project award for anti-monopoly evidence collection equipment, which said the winning company was Jinan Huitian Yunhai Information Technology Co., Ltd, and that the winning bid was RMB 195,850.

The Center for Competition Policy and Big Data provides data and evidence collection services for SAMR for antimonopoly review on corporate concentration

On October 10, SAMR released the results of the winning bid for the Anti-Monopoly Data and Evidence Collection Project and Other Services, with SAMR’s Center for Competition Policy and Big Data as the winning bidder, with a winning bid of RMB 2.58 million.

Director of SAMR (Luo Wen): significant achievements in building a unified national market and dismantling administrative monopolies and market monopolies

On October 10, Luo Wen, director of SAMR, said in his article Historical Achievements and Changes in Chinese Market Regulation that the construction of a Unified National Market has obtained significant results and that the dismantling of administrative monopolies and market monopolies has been effective. The article states that since 2018, the state has been committed to promoting the establishment of a national fair competition review system, vigorously cleaning up and abolishing various regulations and practices that hinder the unified national market. and fair competition, to continuously strengthen law enforcement against abuse. administrative power to exclude and restrict competition, vigorously safeguard the order of fair competition in the market, protect the lawful rights and interests of various enterprises in the market, safeguard the rights and interests of consumers and social public interests, and to promote the continuous optimization of the ecology of the Chinese mega market.

MOF and CAFS Officers Respond to Journalist’s Questions Regarding GPL’s Exposure Draft

On October 9, agents from the Ministry of Finance (“MOF”) and the Chinese Academy of Fiscal Sciences (“CAFS”) answer the questions of the journalists regarding the exposure draft of the People’s Procurement Laws Republic of China (“LPG”), the main aspects, including the purpose of the amendment of the GPL; the main changes made to the GPL as a result of this amendment; the provisions included in the exposure draft to prevent and reduce corruption in the public procurement process.

Anti-Monopoly and Fair Competition Commission established in Shanghai

On September 30, the Shanghai Anti-Monopoly and Fair Competition Commission was officially established. The office of the Anti-Monopoly and Fair Competition Commission is located in Shanghai AMR, and the office manager is Wenhao Peng.

Public app

Hubei AMR investigates abuse of administrative monopoly of Xiangyang Administrative Approval Bureau

On October 17, 2022, Hubei AMR announced that, according to the results of the lawfully conducted investigation into the alleged abuse of administrative power to exclude and restrict competition by the Xiangyang Administrative Approval Bureau since June 2022, the Xiangyang Administrative Approval Bureau violated Article 34 of the People’s Republic of China Anti-Monopoly Law (“AML”). The Xiangyang Administrative Approval Bureau realized that the above behavior violated the provisions of the AML and actively rectified during the investigation and eliminated the adverse effects. Hubei AMR’s investigation procedure therefore ended accordingly.

Merger control

Director of NDRC: focus on the launch of “green light” investment cases for the platform economy

On July 28, 2022, during the thirty-seventh session of the Standing Committee of the National People’s Congress (“NPC Standing Committee), Lifeng He, director of the National Development and Reform Commission (“NDRC”) stressed that it is necessary to promote the standardized, sound and sustainable development of the platform economy, complete the special rectification of the platform economy, implement standardized supervision of the platform economy platform and focus on launching a number of “green light” investment cases.

CIMC Terminates Acquisition of APMM Due to Merger Control, Pays Reverse Break Fee of Up to RMB 600 Million

On October 20, China International Marine Containers (Group) Co., Ltd. (“CIMC”) announced that after discussions with APMøller–Mærsk A/S(“APMM”), CIMC and APMM signed the Settlement Agreementand CIMC must pay APMM a settlement fee of 85 million USD (approximately 600 million RMB).

Court litigation

SPC: Strengthen anti-monopoly justice and legally adjudicate “Choose one from two” and BDDP cases on e-commerce platform

On October 19, Rong He, deputy secretary of the Supreme People’s Court Party Group (“SPC), emphasized during the 20th National People’s Congress (“NPC”) that the laws, regulations and opinions issued must be used to build a Unified National Market. It is necessary to strengthen anti-monopoly justice and against unfair competition to maintain a fair market order. It is necessary to legally deal with cases such as “choose one out of two” and “big data discriminatory pricing” (BDDP) of e-commerce platform to strengthen the protection of the legitimate rights and interests of workers and consumers in the new forms of employment, and promote the healthy development of the platform economy of the digital economy.

SPP: actively and regularly conduct public interest litigation in the area of ​​anti-monopoly and focus on the Internet and other areas of livelihood protection

On October 15, 2022, the Supreme People’s Procuratorate (“PSP”) published data on the main cases handled by national prosecutors in the first three quarters of the year and indicated the direction of development: to play an active role in the protection of intellectual property rights and litigation of public interest against market players. Respond to the office of Public Interest Litigation Prosecutor to actively and regularly conduct public interest litigation in the area of ​​anti-monopoly, with emphasis on the Internet and other areas of consumer protection livelihoods to continuously improve market vitality and create fair and orderly competition in the market environment.

Qinghai Local People’s Court Transfers Damage Compensation Case for Abuse of Dominant Market Positions to Intermediate People’s Court

On October 3, the People’s Court of Minhe Hui and Tu Autonomous County of Qinghai Province issued a civil decision on Haidong Huaze Gas Appliances Trading Co., Ltd Minhe Branch v. Qinghai Province Minhe Chuanzhong Oil & Gas Co., Ltd, which, in accordance with the provisions of Article 1 and Article 3, paragraph 1 of the Provisions of the Supreme People’s Court on several issues relating to the application of law in the trial of civil disputes arising from monopoliesruled that the case should be under the jurisdiction of the intermediate people’s court of the city where the provincial people’s government is located, and therefore transferred the case to the jurisdiction of the Xining intermediate people’s court.

Drinking water suppliers at Changsha South Railway Station sued for price consistency monopoly, Supreme Court dismisses for insufficient evidence of meaningful binding

On September 30, the appellant, Binquan Li, appealed the civil judgment of the Changsha Intermediate People’s Court of Hunan in a monopoly dispute with the respondent, Hunan Xiangpintang Industry and Trade Co., Ltd. do not prove that Xiangpintang and the other five defendants engaged in the conduct prohibited by the AML, the SPC found that the evidence available in the case did not prove that Xiangpintang and the other five defendants entered into a monopoly agreement to fix the price of the goods and decided to reject all requests from Binquan Li.

Academia

The 3rd CRESSE-JUFE International Symposium on Competition Policy was successfully held online

On October 18, 2022, the 3rd CRESSE-JUFE International Seminar on Competition Policy, co-organized by Jiangxi University of Finance and Economics (“JUFE”) and the European Conference and Summer School on Competition and Regulation (CRESSE), took place in Zoom online and lasted three days.

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