Introduction
2009 years have quietly gone on August 1, 2008 implementation known as China's The industry is undergoing a large inventory, Grandfield law firm selected the Summary.
new year, we'll see 2010 China anti-monopoly law governing the process, and your witness in 2010 in China anti-monopoly law in the governance process, bit by bit.
1. the Commerce Department banned Coca-Cola Coca-Cola to buy Huiyuan
the world's largest beverage company, Huiyuan Juice is the largest juice manufacturing group, and in February 2007 listed in the Hong Kong Stock Exchange on September 9 .2008 morning, announced the Hong Kong Stock Exchange: Coca-Cola's The ABN AMRO Asia will represent a wholly owned subsidiary Atlantic Coca-Cola Company to acquire all the shares of Huiyuan Juice, all outstanding convertible bonds and the cancellation of all outstanding options of Huiyuan, a voluntary conditional cash offer. in accordance with the notice, this single involving an amount of 2.4 billion transaction if completed, will become China's food and beverage industry so far the biggest acquisition. an international beverage giant, one of China's market dominant fruit juice industry, the combined strengths of both on the future of China and the world pattern will drink what impact, its significance and weight self-evident.
2009 3 18 Ministry of Commerce issued on Coca-Cola Huiyuan case review of mergers and acquisitions decisions, the Ministry of Commerce official announced that, under the Chinese anti-monopoly law against Coca-Cola acquire Huiyuan.
under the operators participating in the concentration of market share in the relevant market and the market control;
(b) the relevant market, market concentration;
(c) the operator on the market entry, technological progress;
(d) operators on consumers and other business operators;
(e) the operator focused on the impact of national economic development;
(vi) the Huiyuan brand competition in the market for fruit juice impact.
review is concluded, the Ministry of Commerce according to law, conducted a comprehensive assessment of the concentration, focus confirmation will have the following adverse effects:
1, concentration is complete, Coca-Cola Company has the ability to carbonated soft drinks market in dominant position on the transfer to the juice drinks market, they eliminate the existing juice companies, restricting competition and thus harm the legitimate interests of consumers drink.
2, affect the beverage brand is a key factor in effective competition in the market, focus on the completion , the Coca-Cola by controlling the , concentrated fruit juice will make potential competitors, barriers to market access significantly improved.
3, concentrated fruit juice squeezed the domestic small and medium enterprises survive, suppress domestic enterprises to participate in the juice market competition and the ability of independent innovation, give Chinese juice market, adversely affect effective competition is not conducive to China's sustained and healthy development of fruit juice industry.
discuss additional restrictive conditions. In order to reduce the adverse effects identified in the review, the Ministry of Commerce and the Coca-Cola to restrictive conditions attached carried out negotiations. talks, the Commerce Department to review the problems found, requiring Coca-Cola to put forward feasible solutions. Coca-Cola on the Ministry of Commerce expressed their own views the problem and has proposed to modify the initial solution and its programs. After assessment, the Ministry of Commerce that the Coca-Cola competition issues that affect the relief program, still can not effectively reduce the adverse effects of this concentration.
view of the above reasons, according to Ministry of Commerce that the concentration has to eliminate or restrict competition in effect, will be effective competition in the Chinese juice market and juice industry, adversely affect the healthy development. In view of the participating operators did not provide sufficient evidence that focused on competition beneficial effects than negative effects, or to public interests, within the prescribed time, the Coca-Cola Company did not offer viable solutions to reduce adverse effects, therefore, decided to ban the concentration of business operators.
Comments: ( Yang Yang lawyers)
2009, the Commerce Department antitrust review of business concentration 87 filing, the conclusion of 67, most of the unconditional approval, which prohibit 1, the conditional approval of 5 cases.
case for anti- Monopoly Law, the Ministry of Commerce of the first cases of prohibited concentration of undertakings; is so far only one case was prohibited concentration of undertakings. For the practice of learning and guidance.
the decision to prohibit the concentration initial display concentration in the business of antitrust law on the execution. The most notable case is the Ministry of Commerce bold in the review process and Australia learn from the European Commission antitrust agencies in the implementation of practical application of anti-monopoly over the effect such a new thing for the Chinese anti-monopoly law, has great reference value.
addition to conduction effects, the reasons for this focus has been banned include enhanced control to bring the brand's market entry barriers and domestic small and medium the adverse effects of fruit juice business, which reflects the Department of Commerce reported in the treatment of business concentration and consideration of prudence on the comprehensiveness of the problem.
Unfortunately, the Ministry of Commerce of the word itself, apart from a few hundred, compared to Europe reviewed hundreds of pages of law enforcement agencies decide, it is very thin. in the content, notices the lack of the relevant market, market share, key issues such as the strong dominance argument; the evidence, and notice the lack of necessary data to support and economic analysis . particularly in the treatment of The juice market dominance transmitted to the phrase will merge their respective ore operations in Western Australia to set up a joint venture company and each owned 50%. As both the amount of iron ore exports, and accounted for more than 80% of Australia, has constituted a substantial monopoly. and as dependence on imported Australian ore than 40% of Chinese, how to deal with an industry focus.
International Steel Association, China Steel Association, the European steel industry Union, Japan Iron and Steel Union expressed strong opposition.
Department of Commerce that has not received report of two antitrust extension.
Comments: (Liu Shengli lawyers)
outside of China how to deal with a major anti-trust monopoly, antitrust regulation is to merge the two extension, the case in caused extensive discussion community.
According to China's the principle of a requirement too, reflects the effect of extraterritorial jurisdiction that the clause itself is not sufficient to guide practice. turnover within and including at least two operators in the previous fiscal year's turnover in China, as a centralized place or jurisdiction to declare the threshold of the catalyst. a combination of both, making China the implementation of extraterritorial jurisdiction in the antitrust field has been achieved legal basis, but it is only the basis.
provided that they meet the above conditions, the merger will be in the jurisdiction of China. If the declaration can not get Chinese government approval, the consequences would be how? under the existing legal regulation, the Chinese government of refusal may lead to conflict of laws with other countries.
First, many countries to determine the effects of monopoly theory of jurisdiction over the case. When multi-national use of domestic antitrust rules to regulate international economic behavior, the conflict between countries range will be expanded. that jurisdictional disputes will involve issues of national sovereignty or associated with sovereignty. such as the number of relevant national authorities asked to investigate the same transaction. in practice the solution of such conflicts can be extremely complex process . non-management involvement by the state mediation, problem solving is incredible. Second, the so-called extra-territorial effect of the law is real law of the land within the extraterritorial application. But the extraterritorial scope and specification of the legal order may have different standards of justice, The resulting dispute arising out of non-regulated areas of law, conflicts inevitably occur. Once again, the extraterritorial application of antitrust laws because of the conflict may also be differences in national antitrust laws occurred. Finally, some countries due to claims of public law with a strict territorial application of the extraterritorial application of antitrust law negates. So, how do clash? problems first thing to consider in dealing with the legal framework, including the use of domestic conflict of law provisions in a reasonable, bilateral or multilateral international agreements. can not be solved, you must consider international cooperation, international organizations or through the coordination of many countries to deal with.
under the antimonopoly law enforcement agencies in order to stop the implementation of centralized, dispose of shares or assets of the deadline, the deadline to transfer the business and take other necessary measures to restore the state before the concentration can be a fine of fifty million or less. do not report, or a decision of the Chinese government not to execute, how to apply the forty-eight will quite intriguing. Leaving aside how to order the parties to stop the implementation of concentration, the deadline dispose of shares, transfer of business, that alone is a fine of 500,000 yuan indeed like the embroidery needle elephants, really worthy of punishment of the suspect effort.
China's ; two extension more effort.
3. Business Administration issued the provisions of antitrust enforcement in China
2009 SAIC announced the two relevant anti-monopoly law enforcement procedures, namely , abuse of dominant position cases, the procedural requirements to safeguard the country's overall competitive market order and unity. In order to ensure uniform enforcement standards, the antitrust authority to exercise caution, according to Unified Council is responsible for monopoly agreements, abuse of dominant market position's anti-monopoly law enforcement work; the same time, taking into account China's vast area, anti-monopoly law to ensure that nationwide coverage of monopoly agreements, abuse of dominant market position cases, in addition to the total national industrial and commercial needs Council direct the investigation and handling of, the remaining cases according to the form needed for the provincial authority responsible for enforcing the business sector, while the business sector is not authorized by the provincial authority to lower levels again.
addition, under the , abuse of dominant position cases, procedural requirements, status cases the procedural requirements, investigation, terminate the investigation or administrative punishment decision, to the SAIC report; a decision within 10 working days, will be the situation, the relevant decision and the case end of the investigation report submitted to the State Administration for Industry for the record.
industrial and commercial administrative organs to investigate monopoly agreements, abuse of dominant position cases, procedural requirements, to restore the situation and so made a detailed survey requirements to enable execution of the system more clearly. : important evidence should be able to initiate an investigation or a finding of monopoly agreement has played a key role in evidence; the same time, the agreement provides for the organizers of the monopoly does not apply large system. relevant provisions of the law enforcement agencies to facilitate control standards to reduce or waive penalties.
the other hand, management of public affairs organizations, abuse of administrative power to eliminate or restrict competition, the behavior of the prices involved. In general, public authorities and organizations for the abuse of administrative power to eliminate or restrict competition, the superior organ shall order him directly in charge of personnel and other personnel directly responsible shall be punished. The business sector is only responsible for enforcing the right of authorities to be investigated and dealt with the higher authorities recommending treatment.
the introduction of the regulations added some details of the regulations, for example, the total State Administration for Industry Bureau under the State Council departments, the provincial government abuse of administrative power to exclude or restrict competition, according to the law can be made to the recommendations of the State Council; of laws and regulations authorized to administer the national public affairs organization abuse of administrative power to eliminate or restrict competition, State Administration for Industry and for managing the organization's authority to make recommendations according to law.
Comments: (Yu Fei Law)
since August 1, 2008 Bureau has received more than 40 reports from about monopolistic behavior, but only a few cases of them began a preliminary investigation, the lack of enforcement rules is one of the obstacles. the introduction of the two procedural requirements, the provisions to make up for the program shortage.
antitrust enforcement has a strong legal, professional and complexity. based on prerequisite. For example, systems, and reports, filing system; clearly stated that Agreement large system operators who promise, time limits for monopoly cases the specific provisions, has its distinctive features, with the relevant provisions of other laws and regulations there is a big difference, to a certain extent, anti-monopoly Pianyu the implementation and operation of substantive law. < br> However, due to departmental interests entangled, ; abuse of dominant market position effectiveness of law enforcement.
addition, the superior authority to the relevant recommendations made according to law, the State Administration for Industry and Commerce and Industry Bureau at the provincial level was not only provides a clear right to make recommendations.
4. State Anti-Monopoly Commission published br> 2009 年 7 7, the State Anti-Monopoly Committee published the basic concepts, the fundamental basis for defining the relevant market, the general method and the hypothetical monopolist test the basic ideas and made a number of practical issues important guiding provisions. goods or services (hereinafter collectively referred to as products) to compete in the product scope and geographic scope. in anti-monopoly law enforcement practice, usually need to define the relevant product market and relevant geographic market. Meanwhile, the relevant market should also consider factors such as timing and technical. fundamental basis. Meanwhile, the , prices and other factors of demand substitution, supply substitution analysis when necessary. In a competitive market operators is unclear or difficult to determine the scope, you can in accordance with the .
Comments: (Wei Shi Lin lawyers)
China's the basis of status and does not provide specific details of defining the relevant market. the absence of defining the relevant market would bring anti-trust law enforcement more difficult and may result in antitrust decisions and the referee between the different conflicting court. scientific and reasonable definition of the relevant market, identify competitors and potential competitors, market share and operators to determine market concentration, determined the operator's market position, analyzing the behavior of operators of the impact of competition on the market to determine illegality of the operator and the liability to be key issues, has an important role. Content provided antitrust guidance document. but in Europe and America more detailed guidance on the relevant market definition or requirements compared to the lack of a defined steps and procedures of the provisions of clarity, especially for determining the benchmark price, SSNIP in the price increase, evidence collection and access to, use of two alternative choices of the key points of operation have yet to complete more detailed requirements to be refined.
5. China Mobile for the first time the original defendants involved in antitrust litigation settlement
Zhou Ze as a consumer of China Mobile Group Beijing Co., Ltd. and China Mobile Communications Group Co., Ltd. (together, charges equal to its terms of trade with other trading partners to implement discriminatory practices, and refund the last two years to receive the the original case, the defendant reached a settlement the two sides. China Mobile agreed to turn Zhou Ze portability does not charge monthly fees for mobile communications services and to > Comments:
since the implementation of this anti-monopoly law, the domestic monopoly monopoly case the respondent, the plaintiff's first antitrust case to get compensation. nationally recognized suspects largest railway monopoly, telecommunications, oil, automotive and software 5 large bear the brunt of the anti-monopoly industry. telecommunication industry regulation and antitrust monopoly issue has been a hot issue. dominance: an operator's market share in the relevant market to one in two; the two operators in the relevant market reaches two-thirds of the total market share; the three operators in the relevant market to reach a quarter of the total market share ter. .
If you can break the monopoly of the telecommunications market, truly free competition, for the users, the most immediate change is the reduction or waiver of various charges. but mostly state-owned telecommunications industry capital, has a natural monopoly advantage of the telecommunications industry and anti-monopoly road is long and far.
6. The Commerce Department said, included in revenue from sales made detailed provisions.
reporting obligations on the people, concentration of business operators from obtaining control or can exert a decisive influence operator declaration, to be with other operators, and impact of competition in the instructions; (c) focus on agreement and related documents; (d) of the participating operators by accounting firms for the previous fiscal year financial reports; (e) required by the Ministry of Commerce and other documents and materials.
on the verification of application materials, in pay. declarer overdue pay, and as undeclared. day written notice to be placed on file and the applicant. documents, information deemed necessary by the review of the case on file shall be in accordance with the and submit filings to the public version of the data and confidential version. declarer should return documents and materials of the trade secrets and other confidential information marked. review before the talks and the declaration in the commercial secrets and other confidential information obligation of confidentiality. withdrawal, statements and arguments of the parties, public hearings, objections, restrictive conditions, such obligations of confidentiality made specific provisions.
on the review body, monopoly review of law enforcement agencies, undertake to receive and review the specific concentration of undertakings reporting law enforcement. declared concentration of business operators to withdraw, it shall submit a written application and give reasons. Aside from abandoning the centralized trading situations, the declaration shall be withdrawn by consent of the Ministry of Commerce. withdraw declared concentration of business operators to review the program to terminate. the Commerce Department agreed to withdraw the declaration is not as the approval of the concentration. matters of written statements, representations, the Ministry of Commerce shall hear the statements and arguments of the parties. parties and the hearing will make provision for the procedure.
on the opposition, inform the participating operators, and set a focus on the operators allowed to participate in the defense to submit comments in writing a reasonable time period. reduce operating concentration has or may have excluded the effect of restricting competition, the participating operators can make adjustments to the program on the centralized trading restrictive conditions performance of, and supervision and inspection and other specific provisions made.
addition, the obligation of confidentiality of information. development of the situation .2008 August 3, reporting and review of the concentration operation does not increase the specific issues involved to enable operators to focus on more detailed areas of the development of supporting regulations is inevitable. aspects of business concentration basic system supporting regulations, for the concentration of standard management reporting and review of the antitrust significance.
approach The specific provisions made on various issues, both involving the meaning and calculation of the turnover, the contents of the application materials issues such entities, including the hearing procedures will be held in procedural issues, enabling operators to focus on the basic reporting and review do the rules to follow.
effect depends on the implementation of antitrust law the gradual implementation of the standards clear and refined, to play the role of any law enforcement aspects of the ultimate need to be implemented. Therefore, the two approaches as an anti-monopoly law enforcement agencies earlier issued a strong supporting operational law, not only played a set standard, detailed procedures for the role, more importantly, will advance antitrust enforcement has legal basis to carry out the situation. Meanwhile, with the concentration of business operators the lead in developing the field of supporting regulations, monopoly agreements and abuse of market dominant position and supporting the introduction and improvement of laws and regulations will lead to wider attention, I believe that the establishment of China's antitrust law system, a sound will be just around the corner, and ultimately anti-monopoly law in the China's economic development process to play its due role.
7. Beijing the first sentence from the anti-trust lawsuit to define Open trial court sentenced the plaintiff for all information services Tangshan Co., Ltd. (Tangshan all companies) v. accused Baidu Beijing Network Technology Limited (Baidu's) monopoly dispute, the decision rejected the plaintiffs for all Information Services Ltd. in Tangshan the claim.
All offered medical network in the July 10, 2008 plunged the daily visits, the former day 2961IP plummeted as 701IP. query Google and Baidu on the national medical network included, the results included in its website, Google shows 6690, while Baidu only four included on its website. All information company that has been a national medical network and malicious shielding Baidu blocked. Baidu's ban is based on its dominant market position available, their behavior is the abuse of dominant market position, violation of the Baidu will rank bids were censored Yuefa, completely set up.
Beijing Intermediate Court for a hearing that all evidence of the information held company Baidu has a monopoly position can not be proved. In addition, even if Baidu has a monopoly, antitrust laws . Therefore, the court dismissed the claims of all information company.
Comments: (Wei Shi Lin lawyers)
case is the not only from the perspective of judicial practice of had a very careful exploration of the future of private anti-monopoly law has a major impact implementation.
in antitrust litigation, by the ...
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