On 18 September 2020, China’s State Administration for Market Regulation (SAMR) published the final version of the Anti-Monopoly Compliance Guidelines for Business Operators. The guidelines provide a framework for how business operators should establish an antitrust compliance system and manage antitrust compliance risks in China. The antitrust guidelines are not mandatory, but are indicative of the key aspects the SAMR expects to see in a good compliance programme.
On the same day, the SAMR issued draft antitrust compliance guidelines for Chinese companies’ overseas business operations, seeking public comment. These draft overseas compliance guidelines are intended to persuade Chinese companies with overseas operations to ensure compliance with overseas antitrust/competition laws.
The antitrust compliance guidelines urge business operators doing business in China to build a robust antitrust compliance programme based on their respective business coverage, scope and industry areas. Key requirements are:
(1) Leadership commitment. Have senior management fully commit to antitrust compliance;
(2) Adequate resources. Establish an antitrust compliance department and/or in-house lawyer/compliance officer to be in charge of antitrust compliance;
(3) Risk assessment and management. Conduct internal self-assessment to identify antitrust law risk, and consider appropriate mitigating measures (e.g., considerations for reporting to the SAMR and applying for leniency, etc.); and
(4) Implementation and monitoring. Make sure that the antitrust compliance programme is well implemented and monitored, i.e., by establishing an internal reward and punishment system, having smooth internal channels for whistle-blowers, building up an effective compliance culture, having sufficient resources and capacity for the compliance system, and providing antitrust compliance training.
The antitrust compliance guidelines are silent on how such compliance efforts may be credited, and the SAMR has not expressly rewarded compliance efforts to date. There would appear to be scope for the authority to consider an effective compliance programme as a mitigating factor in the calculation of fines, in line with the growing number of competition authorities worldwide. Such an approach would be a welcome development, further incentivising businesses to appropriately invest in antitrust compliance, and to prioritise the prevention of violations.
With the SAMR back to normal operations, it is now a good time for companies active in China to reconsider their antitrust compliance programmes, with reference to the framework provided by the antitrust compliance guidelines.
Given the proliferation of competition laws and enforcement globally, companies with cross-border operations, including Chinese companies, should assess their global and regional compliance efforts.
Since compliance issues tend to be interconnected, cutting across disciplines, many businesses are increasingly looking to develop robust multidimensional and connected compliance risk management and monitoring tools that drive a more holistic approach to reducing risk in the organisation’s operations.
The antitrust compliance guidelines are relatively detailed, and contain 30 articles. In September 2019, the SAMR published a draft of the guidelines for public comment. After that consultation, eight sets of local antitrust compliance guidelines were issued by the SAMR’s local branches in Shanghai municipality, and the provinces of Zhejiang, Heilongjiang, Jilin, Hebei, Shandong, Henan and Jiangxi. Some of these guidelines were issued during the covid-19 pandemic, showcasing the importance that Chinese antitrust regulators place on antitrust compliance advocacy. These local guidelines are intended to remind local business operators of the importance of antitrust compliance, as well as the risk of antitrust violations.
The release of the antitrust compliance guidelines has once again signalled the importance the SAMR places on antitrust compliance. The guidelines highlight the key risk areas from the Anti-monopoly Law (AML) perspective: (1) horizontal monopoly agreements such as price fixing, market allocation, output restriction and joint boycotts; (2) resale price maintenance; (3) abuse of dominance; and (4) merger filing obligations for M&A transactions.
Companies are encouraged to have a dedicated antitrust compliance department or antitrust compliance officer to be in charge of overall antitrust compliance management.
In particular, the department or officer is recommended to undertake the following tasks: (1) study domestic and global antitrust laws and enforcement to provide clear antitrust compliance guidance for employees; (2) lay down internal compliance management rules indicating explicit compliance requirements and implementation measures to be integrated into business lines and operations; (3) organise and conduct internal antitrust compliance audits, or “health checks”, to identify risk, and monitor implementation of mitigating/corrective measures; (4) organise and conduct tailored antitrust training for business teams; (5) compile an antitrust compliance report and co-ordinate relevant departments to ensure that antitrust compliance records are integrated into employees’ performance/KPI reviews; and (6) co-ordinate with internal and external resources to respond to antitrust investigations, and to properly and effectively implement mitigating/corrective measures.
The guidelines emphasise that companies and their leadership/senior management should provide adequate resources and support for setting up and implementing their antitrust compliance programmes.
The antitrust compliance guidelines will not replace the regional antitrust compliance guidelines released by local branches of the SAMR. The local guidelines focus on raising awareness and reminding local business operators of the conduct prohibited by the AML and/or likely to elevate the risk of enforcement.
The guidelines, however, provide specific guidance to business operators on how to implement a robust antitrust compliance programme. Companies with cross-border operations will want to consider whether different factors should shape their compliance programmes overseas, or whether the programme being rolled out in China is adaptable to the global risk factors the organisation faces.
Consideration might also be given to how antitrust compliance fits in with other compliance risks facing the business.
Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Danian Zhang (Shanghai) at email@example.com