Antitrust authority releases antitrust compliance guidelines

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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.

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