On 6 June 2014, the Anti-monopoly Bureau of MOFCOM issued an updated revised version of the Guiding Opinions on Notification of Concentration of Business Undertakings which was first published on 5 January 2009. The revised version enumerates the factors that are normally considered in assessing whether the business undertakings have acquired “control” over other business undertakings through transaction, for example, the purpose and future planning of the transaction, the voting mechanism of shareholders’ general meeting, the composition and voting mechanism of the board of directors or board of supervisors, as well as the appointment and dismissal of senior managers, etc.. The revision also clarifies for the first time that “control” includes both sole control and joint control. In addition, the revised version points out, for newly-built joint venture, if it is jointly controlled by at least two business undertakings, then the formation of this joint venture will constitute concentration of business undertakings; if it is solely controlled by one business undertaking with other business undertakings possessing no control, then the formation of this joint venture will not constitute concentration of business undertakings.
The revised version is a summary of common issues encountered by MOFCOM in their review of notification report, which expects to provide guidance to the practitioners in correctly understanding “control” and filing.