On September 8, 2017, the Ministry of Commerce ("MOFCOM") issued the Measures for the Review of Concentration of Undertakings (Revised Draft for Comment) (the "Draft for Comment") for public comments by October 9, 2017.
Encompassing 54 articles in total, the Draft for Comment provides in six chapters for the criteria to judge the concentration of undertakings, methods to calculate the turnover, notification of concentration, review of concentration, etc. The Draft for Comment specifies that a business operator should notify the MOFCOM of concentration after it has signed an agreement for this purpose but has not yet implemented it. The party making such notification may offer proposals to the MOFCOM to subject itself to a conditional concentration approval. There are three categories of such restrictive conditions, including structural conditions which involve divesting tangible assets, such intangible assets as intellectual property rights, relevant equities, etc. Where an evaluation shows that certain proposals are likely to mitigate adverse effects of the concentration on competition, the MOFCOM may grant a conditional approval to the concentration of undertakings, stating in the review decision on a conditional approval that the party obliged to divest relevant assets should not implement the sales before the buyer to purchase the sold business is finalized, the sales agreement is executed and such sale is reviewed and approved by the MOFCOM.