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What form should merger control notification take in China and what content is required?
The notification form is available on the Ministry of Commerce website. Parties must submit hard copies in Chinese as well as electronic copies with the same content on a compact disc. Foreign language originals must be translated into Chinese. When the foreign language originals are long, Chinese summaries can be submitted along with the originals (Article 12 of Measures for Undertaking Concentration Notification 2009 and Articles 22 and 23 of the June 2014 Revised Merger Notification Guidelines). Further, the application form should be submitted online through a user-end application software called Application Form for Anti-monopoly Review of Concentration of Business Operators (Article 17 of the June 2014 Revised Merger Notification Guidelines).
As shown in the table below, there is less material to file in the simplified review process, but parties still need to submit comprehensive information related to market definition, including market shares of the parties and competitors.
|Type of information||Simplified||Normal|
|Detailed information about all affiliates||No||Yes|
|Detailed information about affiliates involved in the transaction only||Yes||N/A|
|Detailed information on the structure of supply and demand||No||Yes|
|– including information on suppliers and customers||No||Yes|
|– including information on market entrants||No||Yes|
|Cooperative agreements between notifying parties||No||Yes|
|Information on efficiencies generated by the merger||No||Yes|
|Failing entity analysis||No||Yes|
|Opinions of government authorities, customers, competitors, suppliers and customers||No||Yes|
The following documents are required for notification under Article 10 of the Measures for Undertaking Concentration Notification 2009 and Article 20 of the June 2014 Revised Merger Notification Guidelines:
- an application letter stating the parties to the transaction, the respective domicile and scope of business, including turnover;
- the power of attorney if the notifying party is represented by legal counsel;
- the notifying party’s certificate of incorporation or identification certificate – foreign parties to the transaction must submit a copy of a notarised and legalised certificate of incorporation;
- certificates of approval and business licences for relevant companies, representative offices and other registered entities in China established by the parties to the transaction;
- descriptions of the impact of the transaction on the conditions of market competition, which shall include specifically:
- an overview of the transaction;
- a definition of the relevant markets;
- the market shares of the parties involved in the transaction in the relevant markets and their control of those markets;
- details of key competitors and their market shares;
- details of market concentration;
- details of market access;
- details of current industry development;
- details of the transaction’s impact on the structure of market competition;
- details of industry development;
- details of technological progress;
- national economic development;
- details of consumers and other companies; and
- details of the assessment and basis of the transaction’s impact on relevant market competition;
- a copy of the transaction agreement. All documents and material must be in Chinese. Foreign language originals must be translated into Chinese or, when the documents are long, summaries in Chinese can be submitted along with the originals;
- audited financial and accounting reports of each of the parties for the preceding financial year. All documents and material must be in Chinese. Foreign language originals must be translated into Chinese or, when the documents are long, summaries in Chinese can be submitted along with the originals; and
- other documents and information to be submitted as required by the Ministry of Commerce.