On 18 November 2008, the Chinese Ministry of Commerce (MOFCOM), the authority responsible for merger control review under the Anti-monopoly Law (the AML), published its decision to clear InBev NV/ SA’s proposed US$52bn acquisition of Anheuser-Busch Companies Inc (the Transaction), subject to conditions.
MOFCOM’s decision regarding the Transaction (the Decision) marks the first time that a merger decision under the AML has been published and the first time that merging parties have been required to agree to undertakings in order to obtain clearance under the AML. A small number of other clearance decisions have been issued, but not published, and the expectation is that MOFCOM will only publish decisions imposing undertakings or prohibitions.
The Decision does not set out any detailed analysis of the Transaction, but the nature of the undertakings required – they do not require changes to the Transaction, but rather relate to the parties’ ability to make further acquisitions in China – may be an interesting insight into MOFCOM’s future approach.
This briefing discusses in further detail the significance of the Decision and its implications for the future of merger control review in China.
The review process
According to the Decision, the period of review by MOFCOM lasted slightly longer than two months, with the parties submitting a notification on 10 September 2008 and then being required to submit several rounds of information before the review period formally commenced. In total, the formal ‘phase 1’ review period appears to have lasted for 21 days (out of a maximum possible of 30 days) after MOFCOM was satisfied with the information received. The remaining time elapsed before the formal review, as the parties sought to respond to MOFCOM’s information requests.
MOFCOM also indicated that it consulted with third parties by holding ‘numerous seminars, symposia and hearings’, including with other relevant governmental departments, the brewery industry association, the major domestic beer makers and suppliers and distributors.
Unusual nature of the conditions imposed on the Transaction
The Decision stated that the Transaction will not eliminate or restrict competition in China’s beer market. However, the Decision nevertheless added that, given the large scale of the acquisition and the strong market share and market position of the combined group, conditions would be imposed to minimise potentially adverse effects on China’s beer market in the future:
- Anheuser-Busch’s existing 27 per cent stake in Tsingdao Brewery may not be increased;
- InBev should notify MOFCOM in a timely manner if there are any changes in its controlling shareholders, or the shareholders of such controlling shareholders;
- InBev should not increase its existing 28.56 per cent stake in Zhujiang Brewery; and
- InBev should not hold any stake in China Resources Snow Breweries or Beijing Yanjing Brewery, two other major breweries in China.
InBev was required to notify MOFCOM before seeking to take any such steps and to obtain MOFCOM’s prior approval.
As a first glimpse of MOFCOM’s remedies policy under the AML, these undertakings demonstrate an approach not typically associated with ‘pure’ competition law review.
- First, the Decision expressly stated that the Transaction did not give rise to competitive concerns in China. There would therefore appear to be little justification on competition law grounds to require the parties to enter into binding obligations governing their future conduct.
- Second, in imposing controls on InBev’s future ability to make acquisitions in China, before any such potential acquisitions have themselves been notified or analysed under the AML, MOFCOM appears to be laying down a marker as to the extent of consolidation it is prepared to countenance in the industry and imposing a degree of oversight in excess of that contemplated by the AML (which may in any event have required notification of such future acquisitions). This has led to the suggestion that MOFCOM’s approach has as much to do with industrial policy as it does with competition assessment.
MOFCOM’s first published decision under the AML has revealed important insights into the procedural aspects of a merger control review and decision-making process that is still fast evolving and at the same time demonstrated that the Chinese merger control authority is willing to adopt an approach to remedies that at first sight differs from the international norm.