China

The National Development and Reform Commission has released two sets of guidelines namely the Guidelines on the Application of Lenient Treatment Rules in Horizontal Monopoly Agreement Cases (the “Lenient Treatment Guidelines”) and the Guidelines on Operator Commitment in Anti-Monopoly Cases (the “Operator Commitment Guidelines”) this month for public review. The deadline for submission of comments on both sets of draft guidelines is 22 February 2016.

Background

Articles 45 and 46 of PRC Anti-Monopoly Law provide the general rules of the leniency and operator’s commitment programmes in China during anti-monopoly investigations. These two provisions are designed to encourage operators to cooperate in anti-monopoly investigations and to promote the efficiency of investigations. However, no guidelines exist regarding the implementation of these provisions, which has caused confusion for a long time amongst regulators, business operators and lawyers. 

The two newly published draft guidelines give the authorities designated by the State Council to undertake anti-monopoly law enforcement (the “Enforcement Authorities”) a detailed guide on how to handle the leniency and operator’s commitment programmes during anti-monopoly investigations.

Key points of the Draft Lenient Treatment Guidelines

Under the PRC Anti-Monopoly Law, during an anti-monopoly investigation, if the operator has voluntarily reported the relevant facts regarding the entering into of a monopoly arrangement and provided important evidence, the Enforcement Authority can, at its discretion, reduce or waive the sanctions imposed on a business operator for its participation in a monopoly agreement. 

The draft Lenient Treatment Guidelines give practical instructions on the application for and execution of lenient treatment, as well as detailed rules on the scale of reduction of sanctions that an operator is entitled to under a lenient treatment programme. The key points of the draft Guidelines are set out below. 

  • Applicable scope - The Lenient Treatment Guidelines only apply to horizontal monopoly agreements defined in article 39 of the PRC Anti-Monopoly Law. 
  • Application for Lenient Treatment - The application can be submitted orally or in the form of a written report stating relevant facts of the monopoly agreement. In such report, the operator must admit that it is in violation of the PRC Anti-Monopoly law, and provide a detailed description regarding the execution of such monopoly agreement. If the operator does not have enough time to prepare a detailed report, a simplified report may be submitted first.
  • Reduction of sanctions - Depending on the timings of applications, different leniency treatments may be given to different operators in one horizontal monopoly case. They may have their sanctions reduced by a percentage of 30% to 100%. 
  • Confidentiality and disclosure - All of the written materials submitted with a leniency application will be treated as confidential by the Enforcement Authority, and will not be disclosed without the consent of the applicant. Such materials will also not be used as evidence in civil procedure. If the lenient treatment is not granted, these materials cannot be used as evidence to prove that the applicant is engaged in monopoly activities. 

Key points of the Draft Operator Commitment Guidelines

Similar to lenient treatment, under the PRC Anti-Monopoly Law, if the operator agrees to undertake certain specific measures which will lead to the elimination of practices which are in breach of this law, the Enforcement Authorities may decide to suspend the investigation. 

The draft Operator Commitment Guidelines give practical guidance regarding the operator’s commitment and termination of the investigation. The key points from the draft Guidelines are set out below: 

  • Qualifications of commitment makers - the Enforcement Authority cannot accept any commitment made by the operator or make a decision to suspend the investigation if a monopoly agreement case involves the following behaviours:
    • fixing or changing commodity prices, 
    • limiting production or sales quantity, or 
    • segmenting a sales or material purchase market. 
  • Withdrawal of the commitment - the operator can withdraw its commitment after the investigation has started but before the decision has been made. Once the commitment has been withdrawn, the Enforcement Agency will suspend the review of the commitment and continue the anti-monopoly investigation. Any further commitments from the operator will not be accepted. 
  • Termination of investigation - where the Enforcement Agency considers that the business operator has fulfilled its commitments, the regulator may decide to terminate the investigation. However, this decision shall not be interpreted as an affirmation of whether the operator's behaviour constitutes a monopoly. Notwithstanding the decision, the agency can legitimately investigate similar behaviours and impose administrative sanctions. 

Conclusion

The publication of the two draft guidelines will give a clearer picture of anti-monopoly investigations in China. Operators should pay close attention to these guidelines and use them to avoid risks in relevant business operations.