On 18 April 2014, China’s Ministry of Commerce (MOFCOM) published the Tentative Guidelines on the Notification of Simple Cases in Concentrations of Undertakings (the Guidelines). The Guidelines follow MOFCOM’s promulgation of the Interim Provisions on Standards for Simple Cases in Concentrations of Undertakings (the Standards) in February 2014 which specified six circumstances1 in which a transaction can be deemed a “simple case,” i.e. a notifiable transaction which is unlikely to give rise to any competition concerns in China. The Guidelines provide procedural guidance for the notification of such simple cases. The adoption of the Guidelines, together with the Standards, seem to represent MOFCOM’s ongoing effort to expedite the review of non-issue cases. However, the Guidelines do not undertake a shorter review timeframe and might also provide opportunities for third parties to raise issues, even delaying the review process. Therefore, the benefits for companies applying for simple case treatment of their transactions must be further tested in practice.
Notification of a simple case
The Guidelines provide procedural guidance on how to notify a transaction as a simple case.
A. Optional pre-notification consultation
The Guidelines offer notifying parties an option to initiate a pre-notification consultation meeting with the Anti-monopoly Bureau (AMB) of MOFCOM to discuss whether the notified transaction qualifies as a simple case. The pre-notification consultation meeting is not mandatory.2
While the pre-notification consultation may help the parties to make a more informed decision with regard to their notification strategy, there is no indication in the Guidelines that MOFCOM is obligated to give binding opinions during the pre-notification consultation meeting. It is still possible that, even though MOFCOM made a positive comment regarding the qualification of the transaction, it nevertheless decides that the transaction does not qualify as a simple case after reviewing the notification.
B. Simple case notification form
According to the Guidelines, MOFCOM will not review a notification as a simple case at its own initiative. Notifying parties which intend their transaction to be treated as a simple case must explicitly apply with MOFCOM by using a “simple case notification form” when making the notification.3 Notably, some of the lengthy materials and information requested in the normal notification form are no longer required in the simple case notification form, which to some extent eases the burden of notifying parties. Materials and information not requested in a simple case notification include: information of the parties’ affiliates which are not in the business relevant to the notified transaction; the business licenses / certificates of approval of the parties’ affiliates within PRC; the demand and supply structure of the relevant market and information of parties’ major suppliers and customers; information on market entry; horizontal or vertical cooperation agreements between the parties; and potential efficiencies of the transaction, etc. However, the simple case notification form still requires substantial corporate and competition-related information in particular, comprehensive market definition and a full set of the market shares of the parties and their major competitors.
C. Pre-acceptance assessment
Upon the receipt of the notification, if the AMB finds that the transaction satisfies the criteria of a simple case, it will accept the transaction as a simple case and start the review. If, however, the AMB decides that the notification does not qualify as a simple case, the notification will be rejected and the notifying parties are requested to re-notify the transaction as a normal case.
It should be noted that the Guidelines do not specify a timetable for the AMB’s assessment in this pre-acceptance period. It is also unclear to what extent the AMB will look into the submitted materials in determining whether the notification has met the criteria set forth in the Standards, or whether MOFCOM would ask supplemental questions during this period as they do for normal cases. Currently, MOFCOM’s pre-acceptance review of normal cases focuses only on completeness of the notification and normally lasts for four to six weeks. In contrast, during the pre-acceptance assessment of a potential simple case, as MOFCOM is likely to focus its review on substantive issues such as market definition-as this is the starting point to determine whether a transaction would satisfy the market share thresholds for a simple case- the time period of the pre-acceptance review is highly uncertain and could be longer than that for a normal case.
D. Solicitation of third parties’ comments
In addition to the simple case notification form, when making a simple case notification, notifying parties are also required to submit a public notice form which provides an overview of the transaction, a brief introduction of the parties to the transaction and the reasons for the transaction to be qualified as a simple case. After the AMB has accepted the transaction as a simple case, the public notice form of the transaction will be posted on MOFCOM’s website for 10 days to invite opinions from third parties with regard to the transaction’s simple case status. In contrast, notifying parties are not required to publicise their transactions if they are reviewed as a normal case.
During the 10-day publicity period, third parties may submit written opinions to the AMB to challenge the transaction’s eligibility as a simple case. If, upon verification of such third party challenges, the AMB finds that the transaction does not qualify as a simple case, it will withdraw its previous determination and the notifying parties will have to re-notify the transaction following the normal notification procedure.
E. General rules
As specified in the Guidelines, the AMB may also withdraw a simple case qualification at any time of the review process if it discovers that notifying parties conceal important information, or provide false or misleading information.
To offer the notifying parties an opportunity to defend their position, the Guidelines provide that if the AMB intends to reject a simple case notification before acceptance or withdraw its determination of a transaction as a simple case after acceptance, it shall hear the opinions of the notifying parties and verify the facts, reason and evidence raised by them. Unfortunately, the Guidelines do not provide any further procedural or substantive details to guarantee the effective use of such defense rights by the parties.
The promulgation of the Guidelines and the Standards signifies the formulation of a simplified notification review regime in China. The Guidelines clarify the notification procedure for simple cases and provide reference to a series of important issues such as how notify parties may apply for simple case treatment of their transaction. The Guidelines mark an important and positive step of MOFCOM towards a more streamlined review procedure.
However, the benefits of the Guidelines in expediting the merger review of non-issue cases remain uncertain. The Guidelines stop short of a commitment by MOFCOM to review simple cases on a timely basis or to complete the review within a definite time frame. Moreover, the information requirement of the simple case notification form is not significantly lessened as compared with the normal notification form.
The risk of failing to obtain the simple case status also adds to the uncertainty of the review timetable for simple case notifications. The Standards provide six broad exceptions that can disqualify an otherwise “simple” case, and the determination is made at the discretion of MOFCOM. Also, the impact of a hostile third party’s opinion should not be underestimated. Given that there is no detailed procedural guidance for notifying parties to defend themselves against challenges from MOFCOM and third parties, it is difficult to assess how effective the defence would be if MOFCOM is planning to treat the notification as a normal case. If the notified transaction fails to obtain the simple case status, they will have to re-notify the case, which may take even longer than the normal notification procedure.
Therefore, at the current stage, if notifying parties are confident that their merger will not give rise to competition concerns in China, it may be expeditious to notify their transaction as a simple case. A practical step would be to arrange a pre-notification consultation meeting with MOFCOM to at least get a sense of whether the notified transaction qualifies as a simple case. However, before submitting a simple case notification form, they must carefully analyse any element that could result in a failure of the simple case application, and should thoroughly assess the reactions and challenges from the third parties.