In China, the new energy automobiles (NEAs) are currently defined as vehicles utilizing advanced technical know-how, new technologies and new structures, which use unconventional vehicle fuel as the power source (or conventional vehicle fuel but new in-vehicle power devices). The NEAs are defined as vehicles that integrate advanced technologies in power control, including hybrid electric vehicles, battery electric vehicles (BEV, including solar energy vehicles), fuel cell electric vehicles (FCEV), hydrogen engine vehicles, other new energy vehicles (e.g., efficient energy storage device and methyl ether), and products enumerated in China’s industrial policies.
NEAs are of tremendous significance to the sustainable development of China’s auto industry, contributing to the alleviation of environmental and resource burdens, and the enhancement of national competition at a global level. In accordance with applicable Chinese industrial policies and economy development plans, NEAs are considered as: (1) an important part of China’s auto industry, under which strict legal restrictions and limitations are imposed on foreign investment, from design, manufacture to sales; (2) strategic emerging industry in China, receiving governmental preferential treatment regarding tax and financing; also a critical path to realizing national energy conservation and emission reduction goals; and (3) involving various other fields such as R&D, manufacturing, supporting facilities, and power battery recycling, each of which is subject to different regulatory regimes in China that investors should beware of.
1. Market access for foreign investment in NEA industry
Foreign investors intending to acquire domestic NEA companies shall be subject to the statutory requirements set out in the relevant industrial policies. According to the Catalogue of Industries for Guiding Foreign Investment, NEA components (i.e. power battery) belong to encouraged investments. However, foreign investors may only set up joint ventures with Chinese partners and foreign investors’ equity in the joint ventures may not exceed 50 percent. At the same time, manufacturers must comply with the requirements set out in the Policy on Development of theAutomotive Industry and the Rules on the Production, Admission, and Administration of New Energy Automobiles. In order to manufacture NEAs, foreign-invested enterprises shall obtain admission qualifications for both the enterprise and final products.
The overall regulatory environment of China’s automobile industry can be characterized as follows: the government restricts investments in whole vehicle manufacturing, while encouraging investments in auto parts and components manufacturing. With respect to foreign investment in the NEA sector, besides the equity restrictions imposed on power battery manufacturing joint ventures, critical parts and components manufacturing is permitted for wholly foreign-owned enterprises. According to the State Council’s Catalogue of Investment Projects Subject to Government Verification (2013 Version), new projects for components manufacturing are only subject to the filing procedures and no longer require governmental verification. Since the motors of NEAs are different from traditional engines, they need to meet the new national technical standards for electric motors.
However, since the 2004 amendments to the Catalogue of Industries for Guiding Foreign Investment, the whole vehicle manufacturing industry is no longer a category for encouraged investments and now receives strict regulatory oversight. Foreign capital entering into the NEA manufacturing sector must be in the form of joint ventures and Chinese equity interest shall not hold less than 50 percent of the registered capital. When foreign investors intend to enter the Chinese market via acquisitions, they are not allowed to invest in more than two joint venture manufacturers that produce vehicles in same category. Investors should note that, new NEA manufacturing is allowed only if it has been approved by the Ministry of Industry and Information Technology of the PRC (“MIIT”). If newly-established vehicle enterprises or existing vehicle enterprises intend to produce other types of NEAs beyond their existing product line, they shall first go through the verification or filing procedure for new projects in accordance with the regulatory requirements for such investment.
2. National security review
For the time being, China’s national security review of foreign investments is led by the Ministry of Commerce (“MOFCOM”) and the National Development and Reform Commission (“NDRC”), and is mainly administered through the Inter-Ministerial Joint Meeting. According to the Interim Provisions on the Takeover of Domestic Enterprises by Foreign Investors, Notice on the Establishment of the Security Review System for Mergers and Acquisitions of Domestic Enterprises by Foreign Investorsand other regulations, foreign investment in the following sectors shall be subject to national security review: investment in “key industries”, industries that “may affect national economic security”, enterprises that ” have well-known trademarks or time-honored brands”, and enterprises ” that involve important agricultural, energy and resources, infrastructure, transportation services, key technologies, critical equipment manufacturing, etc. ”
As NEA manufacturers must satisfy the equity ratio limitations set out in the industrial policies, the foreign acquisition of equity interests in Chinese auto makers may trigger national security reviews. In designing a deal structure, investors shall bear in mind the likelihood of obtaining such regulatory approvals. At the same time, foreign investors shall carefully consider the appropriate acquisition form (i.e. spin-off, reorganization) and shareholding structure on the basis of the evaluation of a target company’s outstanding debt and risks in taxation as well as in other areas.
According to the Catalogue of Key Technology and Products subject to Independent Intellectual Property Rights, NEA, its key parts and its supporting facilities are classified as technologies that are significant to economic development, industry upgrading and national security. In the event of foreign acquisitions of the above-mentioned technologies, equities or assets, national security review will potentially be triggered. Since key parts of new energy vehicles are not clearly defined in the above-mentioned catalogue, relevant authorities will use their discretion in determining whether a proposed transaction is subject to such a review. For transaction parties, it is necessary to make suitable arrangements with the Chinese partners in terms of technology center setup, patent licensing and trade secrets protection.
3. Preferential policies for foreign investment
At the national level, NEA enterprises as well as NEA products will be subject to the catalogue management regime (“Catalogue of Recommended Models for the Project of Energy Conservation and New Energy Automobile Demonstration“, “the Catalogue”). Chinese government conducts dynamic management on vehicles and enterprises in the Catalogue: the industry regulatory authority will conduct sample tests of listed autos to verify their real-time operation status in pilot cities, and remove unqualified NEA products and their manufacturers. Only listed ones may enjoy governmental subsidies.
According to the Notice on Further Carrying Out the Promotion and Application of New Energy Automobiles released in 2013, which clearly states “the scope of the vehicles which enjoy central government subsidies should be limited to pure electric vehicles, plug-in hybrid vehicles and fuel cell vehicles”. Furthermore, when calculating the average fuel consumption, the NEA emissions are largely based on the foregoing three types. The subsidy policies enjoyed by foreign investors engaged in the production of NEAs would be identical to those enjoyed by domestic manufacturers.
At the local level, the pilot cities adopted local financial subsidy policies to support this industry. For example, Beijing’s local policy clearly demonstrates that the product range of demonstration of the new energy minibus will be limited to the scope of the Catalogue. Beijing also introduced a series of “Beijing Municipal Catalogue for New Energy Minibus Models and Manufacturers”. According to the provisions of the Municipal Rule on Subsidy Management, only the new energy minibus listed in Beijing’s local catalogue may enjoy subsidiary funds from the Beijing government. The Shanghai Economic and Information Commission also introduced its own catalogue series (Shanghai MunicipalCatalogue for new energy minibus models and manufacturers), such that only the products and enterprises included in this catalogue could enjoy Shanghai’s preferential policies. According to a recently released regulation by State Council, “local variants” of the NEA catalogue will be replaced by a national one.
4. NEA promotions and encouragement
As the government policy of auto procurement shows its preference towards NEAs, relevant manufacturers may adjust their existing product lines to seize such opportunity. According to theCircular on Continuing Launching the Promotion and Application of New Energy Automobiles jointly released by MOF, MOST, MIIT and NDRC, the requirements for pilot cities and areas shall include: during 2013-2015, the cumulative amount of NEAs should not be less than 10,000 in mega-cities or the key areas, and the cumulative number for other cities or regional areas should not be less than 5,000; government agencies, public institutions and other departments shall take NEAs as a prior option for procurement; and, the ratio of newly procured or upgraded NEAs in public transportation, official service, the logistics industry, and sanitation services shall not be less than 30 percent of the total procurement.
NEAs will create a huge impact on public transportation and car rental industry. According to theCircular on Initiating Pilot Subsidy Program of Purchasing New Energy Auto for Individual Use jointly released by MOF and MOFCOM, enterprises engaged in car rental and power battery rental will enjoy central government subsidies just as individual purchasers of NEAs, from which the customers can benefit the subsidized price. According to available online information, the Shanghai Transportation Committee recently launched a research project on NEAs in Shanghai’s car rental market. The low renting and running cost of NEAs helps raise awareness among consumers of this type of cars and thereby helps increase its popularity. Also, Beijing, Hefei (in Anhui province), and other China cities have purchased large numbers of NEAs for taxi companies. This is undoubtedly a great development for the NEA industry.
For foreign enterprises intending to enter China’s NEA industry, a more realistic transactional path is to form joint ventures with existing domestic automobile manufacturers or to make equity and asset acquisitions. In terms of green field investment in NEAs and parts manufacturing, foreign investors can enjoy the commensurate preferential policies with domestic enterprises in many areas. However, in order to realize synergies from acquisitions and ensure success in the NEA business, foreign investors need to be aware of the legal risks, regulatory requirements, and technical standards governing the design, production, sales and maintenance of NEAs in China.