《禁止垄断协议行为的规定》,《禁止滥用市场支配地位行为的规定》,《制止滥用行政权力排除、限制竞争行为的 规定》(12/31/2010)

The State Administration for Industry and Commerce (SAIC) has recently released the Regulations on Prohibition against Monopoly Agreements (“Monopoly Agreement Regulations”), the Regulations on Prohibition against Abuse of Dominant Market Position (“Predominance Regulations”), and the Regulations on Banning Abuse of Administrative Power to Eliminate or Restrict Competitive Activities (“Administrative Power Regulations”), which shall all come into force as of February 1, 2011.

 

  1. Regulations on Prohibition against Monopoly Agreements

The Monopoly Agreement Regulations further clarify the concept of monopoly agreements, which are defined as agreements (in written or oral form), decisions or other concerted conducts reached among the operators, or carried out by operators under the auspices of the industry association, to eliminate or restrict competition in violation of Articles 13, 14 or 16 of the Anti-Monopoly Law. Monopoly agreements concluded between competing operators to restrict production volume or sales volume of merchandise, divide sales markets or raw material procurement markets, restrict purchase or development of new technologies or equipments or boycott of certain transactions are prohibited.

  1. Regulations on Prohibition against Abuse of Dominant Market Position

The Predominance Regulations clarify the definitions of dominant market position, and how to recognize the dominant market position. The “dominant market position” refers to the market position that enables operators to control the price or volume of a product or other trade terms in the relevant market, or to impede or affect other operators’ access to the relevant market.

To recognize the dominant market position, the following factors shall be taken into consideration:

  • The operator’s market share in the relevant market, as well as the competitive situation in the market;
  • The operator’s ability to control the sales or raw material procurement market;
  • The operator’s financial conditions and technical strengths;
  • Extent of other operators' reliance on the operator in transactions;
  • Degree of difficulty for other operators to enter the relevant market;
  • Other factors relevant to recognition of a dominant market position.
  1. Regulations on Banning Abuse of Administrative Power to Eliminate or Restrict Competitive Activities

The Administrative Power Provision further specifies seven types of abusive acts by administrative authorities and other organizations with administrative power over public affairs upon authorization of laws or regulations, including:

  • Misusing their administrative power, by means of expressly demanding, implicating, rejecting or postponing an administrative licensing or repetitive inspection, etc.; openly or surreptitiously force individuals or entities to sell, purchase or use products of operators designed by said authorities; or intervening in operators’ normal business operation;
  • Obstructing or restricting non-local merchandise from entering local markets by means of enforcing discriminatory technical requirements or inspection standards, or taking discriminatory technical measures against non-local merchandise, such as repetitive inspections and repetitive certification, etc.;
  • Obstructing or restricting non-local merchandise from entering local markets by adopting administrative licensing directed exclusively at non-local merchandise or, when imposing administrative licensing on nonlocal merchandise, subjecting them to different permit conditions, procedures, deadlines, etc.;
  • Obstructing or restricting non-local merchandise from entering local markets or the shipment of local merchandise to non-local markets by setting up checkpoints or taking other measures;
  • Precluding or restricting non-local business operators from participating in local bid activities by means of setting discriminatory qualification requirements or appraisal standards or failing to duly release information, etc.;
  • Precluding or restricting non-local business operators from investing in or establishing subsidiaries in local regions, or interfering in non-local business operators’ abilities to maintain normal business operations in local region by adopting unequal treatment, etc;
  • Compelling business operators to reach and perform monopolistic agreements to eliminate or restrict competition, or compelling business operators with dominant market position to conduct activities by abusing their dominant market positions.
  • Regulations on Prohibition against Monopoly Agreements
  • 禁止垄断协议行为的规定
  • Issuing Authority:State Administration for Industry and Commerce
  • Date of Issuance: December 31, 2010 / Effective Date: February 1, 2011
  • Regulations on Prohibition against Abuse of Dominant Market Position
  • 禁止滥用市场支配地位行为的规定
  • Issuing Authority:State Administration for Industry and Commerce
  • Date of Issuance: December 31, 2010 / Effective Date: February 1, 2011
  • Regulations on Banning Abuse of Administrative Power to Eliminate or Restrict Competitive Activities
  • 制止滥用行政权力排除、限制竞争行为的规定
  • Issuing Authority:State Administration for Industry and Commerce
  • Date of Issuance: December 31, 2010 / Effective Date: February 1, 2011