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Competition & EU

China

Competition and regulatory authorities now possess far-reaching powers to investigate companies and commercial arrangements, prohibit M&A deals, force divestment of merged businesses, review markets and impose penalties. Being compliant and implementing effective risk mitigation strategies is key to companies and individuals doing business in China, Europe and beyond.  We focus not only on problem solving but also on how you can avoid problems in the first place. Our award-winning team of competition lawyers has extensive experience in helping navigate these difficult paths so that you can focus on your business. We have in-depth knowledge of competition rules across different countries and markets.

Businesses that operate in China are still coming to grips with the PRC Anti-Monopoly Law, which prohibits business operators from engaging in anti-competitive activities. To help our clients avoid such risks as serious legal liability, opening themselves to challenges in court and large fines, our group of experts provide you with solutions and advice in the full spectrum of competition issues. From merger control reviews and filings to screening and draft of various commercial agreements, from competition and anti-trust law compliance to representation before competition authorities and courts at both national and European level, we offer a one-stop-shop solution to clients for all their competition law needs. Besides, our sector approach helps us understand your business environment and get to grips with your issues. Our many clients come from industries such as banking and finance institutions, automotive, utility companies, media and telecommunications, chemicals and pharmaceuticals, logistics, aerospace, construction and sports. 

The Competition team in China has been granted the Notable Firm in Competition (2018, 2019) by IFLR 1000, the 2015 China Business Law Awards in Competition and Anti-Trust by China Business Law Journal. 

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19/10/2015
Shang­hai Pi­lot Free Trade Zone: In­ter­pret­a­tion of Ex­emp­tion Rules for Mono­poly...
The PRC Anti-Mono­poly Law (“AML”) provides cer­tain gen­er­al ex­emp­tion rules in its Art­icle 15 un­der which an agree­ment may not be con­sidered as a mono­poly agree­ment. However, lack of de­tailed in­ter­pret­a­tions leaves great un­cer­tain­ties in the ap­plic­a­tion of those rules. On 23 Septem­ber 2015, the Shang­hai Pri­cing Bur­eau pro­mul­gated the Guid­ing Opin­ions on Ex­emp­tion of Mono­poly Agree­ment between the Me­di­um and Small Sized En­ter­prises in China (Shang­hai) Pi­lot Free Trade Zone (Tri­al Ver­sion) (the “Tri­al Opin­ions”). The Tri­al Opin­ions have a valid­ity peri­od of two years.The Tri­al Opin­ions fol­low the prin­ciple of ex­emp­tion rules un­der Art­icle 15 of the AML, i.e. the fol­low­ing agree­ments shall not be con­sidered as mono­poly agree­ments in the con­text of the AML:(1) agree­ments for the pur­pose of tech­no­logy im­prove­ment and re­search and de­vel­op­ment of new products;(2) agree­ments to stand­ard­ise product spe­cific­a­tions or im­ple­ment pro­duc­tion spe­cial­isa­tion in or­der to im­prove product qual­ity, re­duce pro­duc­tion costs and in­crease pro­duc­tion ef­fi­ciency;(3) agree­ments to im­prove com­pet­i­tion strength of small and me­di­um size busi­ness op­er­at­ors (“Im­prove­ment of Com­pet­i­tion Strength”);(4) agree­ments for the pur­pose of pub­lic in­terests such as en­ergy sav­ing, en­vir­on­ment pro­tec­tion or dis­aster re­lief;(5) agree­ments to mit­ig­ate a severe de­crease in sales or ex­cess­ive over-pro­duc­tion dur­ing a peri­od of eco­nom­ic down­turn;(6) agree­ments to pro­tect the le­git­im­ate in­terests in for­eign trade and eco­nom­ic co­oper­a­tion.provided that the un­der­tak­ings con­cerned are able to prove that these agree­ments would not lead to severe re­stric­tion of com­pet­i­tion in a par­tic­u­lar mar­ket (“No Severe Re­stric­tion”) and con­sumers may be­ne­fit from such agree­ments (“Be­ne­fit to Cus­tom­ers”). The bur­den of proof rests on the un­der­tak­ings in­vok­ing the be­ne­fits of the ex­emp­tion rules.The Tri­al Opin­ions also provide in­ter­pret­a­tions of cer­tain terms such as “Im­prove­ment of Com­pet­i­tion Strength”, “No Severe Re­stric­tion” and “Be­ne­fit to Cus­tom­ers”.(1) Im­prove­ment of Com­pet­i­tion StrengthUn­der­tak­ings can prove that an agree­ment im­proves their com­pet­i­tion strength by present­ing the facts that (a) their op­er­a­tion costs have been or will be re­duced; (b) their profits have been or will be in­creased without in­crease of the sales prices; (c) their product/ser­vice qual­ity have been or will be im­proved; or (d) oth­er rel­ev­ant cir­cum­stances.(2) No Severe Re­stric­tionsNo Severe Re­stric­tions” can be ex­plained from the fol­low­ing as­pects:(a) The re­stric­tions on un­der­tak­ings do not go bey­ond what is im­per­at­ive to achieve the pur­pose(s) set out in Art­icle 15 of the AML;(b) The agree­ment does not rule out the pos­sib­il­ity of the in­volved un­der­tak­ings to par­ti­cip­ate in the com­pet­i­tion in re­spect of the sub­stan­tial part of the products con­cerned;(c) The mar­ket shares of the in­volved un­der­tak­ings are re­l­at­ively low; or(d) oth­er rel­ev­ant cir­cum­stances.(3) Be­ne­fit to Cus­tom­ersBe­ne­fit to Cus­tom­ers” are in­ter­preted as the be­ne­fits brought to the cus­tom­ers in the forms of (a) lower price with the same product/ser­vice qual­ity; (b) bet­ter product/ser­vice qual­ity at the same price; (d) more con­veni­ence in trans­ac­tions; and (b) oth­er rel­ev­ant cir­cum­stances.Since the is­su­ing au­thor­ity is the Shang­hai Pri­cing Bur­eau, the Tri­al Opin­ions are only ap­plic­able to agree­ments with price–re­lated com­pet­i­tion con­cerns. In ad­di­tion, such agree­ments shall be con­cluded between small and me­di­um sized en­ter­prises with at least one of them be­ing re­gistered in the Shang­hai Pi­lot Free Trade Zone and the rel­ev­ant geo­graph­ic mar­ket af­fected thereby is Shang­hai. We can see from the Tri­al Opin­ions that the Chinese anti-mono­poly reg­u­lat­ors are fur­ther evolving the com­pet­i­tion laws. Des­pite its lim­ited scope of ap­plic­a­tion, the in­ter­pret­a­tions giv­en by the Tri­al Opin­ions are likely to be taken as ref­er­ence by the coun­ter­parts of the Shang­hai Pri­cing Bur­eau in oth­er loc­a­tions in their en­force­ment activ­it­ies.
20/01/2015
China In­sight - Com­pet­i­tion
On 4 Decem­ber 2014, the PRC Min­istry of Com­merce (“MOF­COM”) is­sued the Pro­vi­sions on Im­pos­ing Re­strict­ive Con­di­tions on Con­cen­tra­tion of Un­der­tak­ings (Tri­al Ver­sion) (the “Tri­al Pro­vi­sions”). They have come in­to ef­fect on 5 Janu­ary 2015 and re­placed the In­ter­im Pro­vi­sions on Im­ple­ment­ing Di­vestit­ure of As­sets or Busi­ness in Con­cen­tra­tion of Un­der­tak­ings. The Tri­al Pro­vi­sions provide more de­tailed rules on re­strict­ive con­di­tions for mer­ger con­trol clear­ance, in par­tic­u­lar on di­vestit­ure.Please ac­cess the News­let­ter to read more.

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6/24/2020
Over­view on Key Is­sues of the Con­tract Part of China’s First Civil Code
27 March 2020
CMS Ex­pert Guide to com­pet­i­tion law dur­ing coronavir­us crisis
01 July 2020
PRC Su­preme People's Court An­nounces Guid­ing Opin­ions (III) on Tri­al of...
On 08 June 2020, the Su­preme People's Court (“SPC”) of the People’s Re­pub­lic of China (“PRC”) pro­mul­gated the Guid­ing Opin­ions (III) on Sev­er­al Is­sues Con­cern­ing Law­ful and Prop­er Tri­al of Civil...
6/16/2020
Over­view on the Stip­u­la­tions on Prop­erty Rights in China’s First Civil...
26 March 2020
CMS Ex­pert Guide to sta­bil­isa­tion and re­struc­tur­ing ini­ti­at­ive
24 June 2020
Over­view on Key Is­sues of the Con­tract Part of Chin­a's First Civil Code
The People’s Re­pub­lic of China’s (“PRC”) first com­bined co­di­fic­a­tion of the civil law ever, i.e. the PRC Civil Code (“PRC Civil Code”), was ad­op­ted on 28 May 2020 and con­sists of 7 Parts and...
09/04/2020
An­nounce­ment of the State Ad­min­is­tra­tion for Mar­ket Reg­u­la­tion on Anti-Mono­poly...
16 June 2020
Over­view on the Stip­u­la­tions on Prop­erty Rights in Chin­a's First Civil...
The Civil Code of the People’s Re­pub­lic of China (“PRC Civil Code”) which was ad­op­ted on 28 May 2020 and will take ef­fect on 1 Janu­ary 2021 con­sists of 7 parts and sup­ple­ment­ary pro­vi­sions at the...
24/03/2020
Non-com­pli­ance Risks of Mono­poly Agree­ments con­cern­ing Af­fil­i­ates un­der...
08 June 2020
Na­tion­al People's Con­gress Ad­opts Chin­a's First Civil Code
On 28 May 2020, the long-awaited Civil Code of the People's Re­pub­lic of China (“PRC Civil Code”), which is the People’s Re­pub­lic of China’s (“PRC”) first com­bined co­di­fic­a­tion of the civil...
03/02/2020
Does the Coronavir­us Out­break con­sti­tute Force Ma­jeure?
17 April 2020
Chin­a's anti-mono­poly watch­dog im­poses re­cord fine on API dis­trib­ut­ors 
Chin­a's anti-mono­poly watch­dog SAMR ini­ti­ated this in­vest­ig­a­tion after re­ceiv­ing a com­plaint in May 2019. The three con­cerned parties un­der in­vest­ig­a­tion in­cluded Shan­dong Kanghui Phar­ma­ceut­ic­al Co.,...