Today (July 29), the State Administration for Industry and Commerce (“SAIC“) held a press conference announcing that it has launched a publication platform for antitrust enforcement decisions.  The final penalty decisions of all cases that have been closed (a total of 12) are published on SAIC’s website.  Ms. Ren Airong, Director General of the Antimonopoly and Anti-unfair Competition Enforcement Bureau of SAIC also mentioned the plan to promulgate the guideline and the regulation concerning IP-related antitrust issues.

  • Publication Platform for Antitrust Enforcement Decisions

According to Ms. Ren, since the Anti-Monopoly Law (“AML“) became effective five years ago, the SAIC has accepted 24 cases in total, among which 23 cases were accepted by provincial Administrations for Industry and Commerce under the authorization of SAIC, and 1 case accepted by the State-level SAIC (abuse of dominance investigation of Tetra Pak announced by the SAIC earlier in July).  Of the 23 cases, 12 are concluded and published today. All of the closed cases involve monopoly agreements in various provinces, such as Jiangsu, Zhejiang, Chongqing, Henan, Hunan, Yunnan, Heilongjiang, Guangdong, and Hubei, and cover a broad range of industries, including insurance, construction materials, liquefied petroleum gas, tourism, and etc.

This is a very welcoming effort made by the SAIC to improve transparency of its enforcement actions and will provide very valuable guidance to businesses at large.  We expect that the other agencies will follow suit in the future.

Set forth below is a list of the 12 cases that are published:

Click here to view list.

  • Plan to Promulgate IP-related Antitrust Guideline and Regulation

Ms. Ren also announced that the SAIC is promulgating the Guideline of Antimonopoly Law Enforcement in Intellectual Property Area and the Regulation of the Administration for Industry and Commerce on Prohibition against Abuse of intellectual Property to Restrict and Exclude Competition. 

The SAIC has been working on an IP-related antitrust guideline for a few years.  However, the most recent draft promulgated earlier this year changes the title from “Guideline” to “Regulation”.  Some speculate that the change is prompted by difficulties in getting the other two Chinese antitrust enforcement agencies (i.e., the National Development and Reform Commission and the Ministry of Commerce) aligned.  Today’s announcement appears to suggest that the SAIC has not given up the idea of publishing the guideline although the priority may be to cause the departmental regulation to be published sooner.

From the legal perspective, a guideline does not have binding legal force; yet if it is issued in the name of the Anti-monopoly Commission of the State Council (like the case for the Guideline on Definition of Relevant Market), it shall reflect the consensus reached by all three enforcement agencies.  On the other hand, the departmental regulation is legally binding although it only binds the SAIC and its local arms.