Key changes to China's merger control regime

Introduction
Imminent change of filing thresholds
Categorised and classified merger control system
Establishment of "stop-the-clock" mechanism
Heavy fines for not filing
Focus on killer acquisitions
Comment

Introduction

The Standing Committee of the National People's Congress of China has amended the Anti-Monopoly Law (AML) for the first time since it was enacted in 2008.

The new version was issued on 24 June 2022 after a two-year review, which included several rounds of deliberation.

In addition to updating the rules that regulate monopoly agreements and abuse of dominance, the new AML brings substantial changes to the merger control rules and procedures, such as introducing the "stop-the-clock" mechanism and establishing the categorised and classified merger control system.

Shortly after the announcement of the new AML, a package of regulations were published. On 27 June 2022, the State Administration for Market Regulation (SAMR) published:

• several draft amendments of the implementation regulations for public comment;
• the draft implementation rules regarding notification threshold (the threshold rules); and
• a review of the concentration of undertakings (the review rules).

On 15 July 2022, the SAMR issued the Announcement Regarding Pilot Delegation of Anti-Monopoly Review of Certain Concentration of Undertakings Cases (the announcement) to restate the categorised and classified merger control system under the new AML.

The table below shows the status of the above four legislations.

The above legislative changes are expected to have numerous implications for companies that do business in, or related to, China. This article provides an overview of these key changes and compliance tips to companies that are frequently obliged to file antitrust notifications in China.

Imminent change of filing thresholds

Turnover thresholds have remained unchanged since the AML came into effect, despite significant economic growth in China. These thresholds have been criticised for being too low, which increased the number of transactions that had to be notified to the SAMR every year.

In response, the SAMR has proposed to increase the turnover threshold to adapt to the country's economic development. In the meantime, a new threshold category has been introduced.

The proposed new filing thresholds apply to:

• aggregated global turnover of all concentration undertakings in the last fiscal year that exceeds 12 billion yuan (approximately $1.8 billion) (increased from 10 billion yuan – approximately $1.2 billion). At least two of these undertakings must each have a domestic turnover of more than 800 million yuan (approximately $120 million) (increased from 400 million yuan – approximately $48 million) in China;
• aggregated domestic turnover of all the concentration undertakings that exceeds 4 billion yuan (approximately $600 million) (increased from 2 billion yuan) in China. At least two of these undertakings must each have a turnover of more than 800 million yuan (increased from 400 million yuan); or
• an undertaking that has a Chinese turnover of more than 100 billion yuan (approximately $15 billion) in the last fiscal year. The other undertaking in a merger or the target in an acquisition must have a market value or market valuation of more than 800 million yuan, and its domestic turnover must be more than one-third of its global turnover.

With the increase of the turnover thresholds, the SAMR may be able to better focus its limited administrative resources on complex cases. Further, certain small companies with low revenue could be relieved from the filing obligation if the increased turnover thresholds are ultimately adopted.

Compliance tips
Companies should apply the new filing thresholds once they are finally determined and become effective, with additional attention paid to the transition period rules.

The newly introduced filing threshold will impose an additional obligation on large companies with a turnover in China of more than 100 billion yuan. Such companies should pay close attention to their transactions with innovative targets that have the required revenue and market value (market valuation), as these may have to be notified to the SAMR.

Categorised and classified merger control system

The new AML adds a declaratory provision that the SAMR should complete and perfect a categorised and classified merger control system to strengthen the review of concentrations in critical areas concerning national development and livelihood.

The announcement details the above provision and specifies that the SAMR must start delegating part of its responsibility to review simple cases to five local antitrust regulators – namely, the respective administrations for market regulation (AMR) of:

• Beijing;
• Shanghai;
• Guangdong;
• Chongqing; and
• Shaanxi Province.

Since the new AML took effect on 1 August 2022, these five local AMR have been empowered to handle simple case filings where one of the notifying parties, the proposed joint venture or the relevant geographic markets defined have a legal connection in their respective regions.

The below chart illustrates the workflow among the notifying party or parties, the SAMR and local AMR that have been delegated to review the merger filings.

Figure 1: case filings workflow

Compliance tips
This is the SAMR's first attempt at delegating its merger control review power to local AMR. The review timeframe for the simple cases delegated should be further observed.

It is advisable for notifying parties to keep in mind during pre-notification of:

• whether their cases can be applied to simple filing procedure and are likely to be delegated to local AMRs;
• the relevant markets defined and market shares, especially when being asked to segment the relevant markets; and
• whether the market shares in the segmented markets can still make the deal applicable for the simple filing procedure.

More clarity is expected regarding whether foreign-to-foreign cases will be delegated to local AMR in the future.

Finally, the delegation mechanism is intended to further improve the review efficiency. However, in the beginning stage, it is uncertain how long it may take the local authorities to complete the review given their limited experience. In the long run, this mechanism is anticipated to further decrease the review time of simple cases.

Establishment of "stop-the-clock" mechanism

The new AML has introduced the "stop-the-clock" mechanism to suspend the review process under three circumstances, including where:

• undertakings fail to provide necessary information or documentation;
• new material facts that affect the review of the concentration need to be examined; and/or
• conditions being imposed on the proposed concentration need to be further evaluated and a relevant undertaking makes a request for suspension.

This amendment will afford the SAMR more time and flexibility to review mergers, particularly cases subject to remedy negotiations. Prior to the amendment, the maximum period for review was 180 days; however, in practice, the SAMR was unable to complete its review in most conditionally approved cases when the 180-day review period expired. Therefore, the notifying parties frequently pulled and refiled their notifications. With this amendment, the SAMR will have a tool to stop the review "clock" during the review process.

Compliance tips
The new AML does not contain a maximum length of time in which the merger review can be suspended and the number of times that the SAMR can stop the clock. It is advisable, therefore, for notifying parties to leave sufficient time for antitrust clearance in the transaction documents and should be better to make agreement with transaction parties to closely collaborate in request for information responses and document submission.

For complex cases, the notifying parties are recommended to assess the potential competition concerns of the transaction before filing, or even before proceeding with a substantive transaction negotiation. As such, with strategies to address the potential remedies beforehand, the notifying parties could speed up the case review process rather than being delayed by the stop-the-clock mechanism. For simple cases, use of this mechanism is unlikely.

Heavy fines for not filing

Compared to the 2008 version of AML, the merger control-related penalties are significantly stronger – namely, the pecuniary penalty and the negative impact on credit records. Under the new AML, the fines for failure to file are divided into two categories - namely, transactions that:

• do not, or are unlikely to, restrict or eliminate competition; and
• restrict or eliminate competition, or are likely to do so.

An undertaking will face up to a fine of 5 million yuan (approximately $7.4 million) if its transaction belongs to the first category or up to 10% of its turnover in the last fiscal year if its transaction belongs to the second category.

In the meantime, article 64 of the new AML states that:

where an undertaking is subject to an administrative penalty due to a violation of this Law, the penalty shall be entered into the undertaking's credit records pursuant to the relevant provisions of the Law, and the information shall be disclosed to the public.

Compliance tips
In addition to the largely incremental fines, undertakings will be affected by the penalty in credit, as it will affect a company's corporate reputation and have a negative impact on the company's future government procurement and bidding activities. Therefore, companies should be more prudent when determining whether a merger notification should be filed.

Undertakings should also use their subsidiaries instead of their parent company to conduct transactions and sign the transaction documents, which may alleviate any negative credit impacts if penalties are unavoidable.

Focus on killer acquisitions

The new AML clarifies, and arguably encourages, the SAMR's ability to investigate transactions that fall under the turnover thresholds but have or are likely to have the effect of excluding or restricting competition. It also clarifies that the SAMR is entitled to impose conditions or prohibit such transactions or, if the transaction has been closed, request the parties to unwind the transaction.

Regarding the specific procedure, article 7 of the review rules states that if there is evidence that a transaction may exclude or restrict market competition even if the mandatory turnover threshold is not met, the SAMR has the right to notify by written notice the undertaking and require the undertaking involved to submit a notification within 180 days from the notification date. Further, the SAMR has clarified that if the transaction has not been implemented by the notification date, the undertakings must delay the implementation until receiving clearance; whereas, if the transaction has been implemented by the notification date, the SAMR reserves the right to take necessary steps to restore market competition.

Compliance tips
There is no precedent for how the SAMR will probe the killer acquisition. Future cases in this regard will need to be closely observed.

In other jurisdictions, such as the European Union and the United States, industries such as high-tech and pharmaceutical industries and the platform economy are the main targets in killer acquisitions. Therefore, to secure the certainty of the transaction, transaction parties in the above areas should consult the SAMR about whether transactions are notifiable, even if the pre-assessment shows that the mandatory filing thresholds have not been satisfied.

Comment

This article has provided an overview of important changes to China's existing merger control rules and procedure. Further revisions to the threshold rules and the review are expected soon, since public comment closed on 26 July 2022.

For further information on this topic please contact Hao Zhan or Ying Song at AnJie Law Firm by telephone (+86 10 8567 5988) or email ([email protected] or [email protected]). The AnJie Law Firm website can be accessed at www.anjielaw.com.