The Ministry of Commerce for the People’s Republic of China (“MOFCOM”) and the European Commission (“the Commission”) have signed up to a cooperation agreement on merger review to enhance collaboration on competition matters between the EU and China.
Cooperation agreement on merger review
On 15th October 2015, MOFCOM’s Anti-monopoly Bureau and the European Commission’s Directorate-General for Competition (“DG Comp”) entered into a cooperation agreement in relation to merger review. The purpose of this arrangement is to set out the guiding principles under which the authorities will review mergers and exchange information whilst maintaining confidentiality, and to clarify the scope and content of their coordination on law enforcement.
This best practices agreement will enable both authorities to communicate at each stage of the merger review process, on topics such as the definition of relevant markets, competitive impact assessments, theories of harm and remedies, which should serve to streamline investigations for the merging parties. Both authorities believe that signing this agreement will significantly increase the level of coordination on law enforcement between them and will continue to strengthen cooperation and coordination in the area of competition policy.
The signing of this practical guidance document took place as the two parties held their 10th EU-China Competition Policy Dialogue in Beijing, at which the parties discussed plans for future cooperation and exchanged views on issues of mutual interest. The competition authorities reviewed their cooperation since the last Dialogue and evaluated the current situation in terms of antitrust legislation, law enforcement and international cooperation.
The EU and China have been collaborating in the field of competition law since adopting the Joint Statement at the EU-China Summit on 5th September 2001, when competition policy was first identified as an area in which discussions should be intensified. Both sides consequently agreed to create an EU-China Competition Policy Dialogue, in order to establish a permanent mechanism of consultation and transparency in the area of competition policy.
Over the last 14 years, the Commission has continued to work closely with China’s competition authorities, concluding the ‘Terms of References on the EU-China Competition Policy Dialogue’ with China's merger review authority MOFCOM in 2004, under which the parties will continue to cooperate, and signing a Memorandum of Understanding with the National Development and Reform Commission (“NDRC”) and the State Administration of Industry and Commerce (“SAIC”) in 2012 in relation to all forms of antitrust infringement.
The relationship between the EU’s and China’s competition authorities is clearly one that both parties continue to regard as mutually beneficial and wish to develop further. Whilst merger parties may benefit from the improved efficiency of merger review as a result of information exchange, companies should be aware of this increased cooperation, particularly when identifying the countries and economic regions in which to make a merger filing.
Although China’s Anti-Monopoly Law has now been in place for seven years, MOFCOM has seen an increase in activity over the last 12 months relating to merger control, issuing its first fines for failure to notify, as reported in our article here. Through this relationship, MOFCOM will be able to seek guidance and expertise from the Commission, so it will be interesting to see what impact this cooperation will have on China’s antitrust legislation and ongoing enforcement by MOFCOM.