MOFCOM introduces interim measures to combat undeclared monopolies

The Chinese Ministry of Commerce issued the Investigating and Handling Concentration of Business Operators not Declared According to Law Interim Measures (MOFCOM Decree No. 6 of 2011) on December 30. The Interim Measures, which came into force on 1 February 2012, were enacted in accordance with the PRC Antitrust Law (Presidential Decree No. 68) and the Declaring Standards for Concentration of Business Operators State Council Provisions (State Council Decree No. 529).

Undeclared concentrations

According to Article 2 of the Interim Measures, the expression “concentration of business operators not declared according to law” refers to “a concentration of business operators that falls within the reporting standard defined in the above Provisions but which is not declared in advance to MOFCOM in compliance with The Antitrust Law.

According to a MOFCOM antitrust bureau spokesperson, the question of whether the reporting standards have been met is judged according standards set in Article 3 of the Provisions, namely: (1) the total turnover of all business operators participating in a concentration for the previous fiscal year on a global basis is over RMB10 billion, and the turnover of at least two of those business operators in China during the previous fiscal year is more than RMB400 million; or (2) the total turnover of all business operators participating in the concentration for the previous fiscal year in China is over RMB2 billion, and the turnover of at least two business operators for the previous fiscal year in China is more than RMB400 million. Any business operators in the concentration which meet either of the above two criteria should report in advance to MOFCOM.