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(November 24, 2009 People's Republic of China's Ministry of Commerce announced 2009 12th come into force on January 1, 2010) the first to standardize the concentration antitrust review, a clear concentration antitrust review process, in accordance with the People's Republic of China anti-monopoly law (hereinafter referred to as the Antimonopoly Act), these measures are formulated.
Review article of Commerce is the concentration of anti-monopoly law enforcement agencies, commitment to receive and review the specific declaration of concentrations of undertakings and law enforcement. Article in the Ministry of Commerce after the filing, before we make the decision, the applicant requested withdrawal of the Declaration of the concentration of business operators, shall submit a written application and state the reasons.
Focus deal, which in addition to the case, declared the withdrawal should be agreed by the Ministry of Commerce. Withdrawal of the Declaration of the concentration of business operators, review the program terminates.
Approval from the Commerce Department agreed to withdraw the Declaration is not as concentrated.
Fourth in the review process, the Department of Commerce encourages the applicant offered as soon as possible helps concentration reviewed relevant documents, information and make decisions.
In the fifth article in the review process, the participation of the undertakings by letter, by fax, to the Ministry of Commerce on matters relating to the Declaration of written statements, representations, Ministry of Commerce shall hear the statements of the parties and to defend themselves.
Sixth in the review process, the Ministry of Commerce may according to need to consult relevant government departments, industry associations, operators, consumers and other entities or individuals. Seventh article in the review process, the Ministry of Commerce could take the initiative or at the request of the parties concerned decided to hold hearings, evidence, hearing the views of interested parties. Ministry of Commerce hearing should notify in advance the hearing participants.
Hearing participants written comments should be submitted at the hearing held to the Ministry of Commerce.
Ministry of Commerce held a hearing, may notify the operators involved in the concentration and their competitors, upstream and downstream enterprises, and other companies represented, and, where appropriate, to invite relevant experts, industry association representatives, representatives from relevant government departments, as well as consumer representatives.
Hearing participants should attend the hearing to comply with public hearings, subject to hearing host arrangement.
Hearing to participate in party business secrets and other confidential consideration wishes to State, you can schedule a separate hearing; arranged a separate hearing, the hearing should be treated in accordance with the confidentiality provisions.
Eighth hearing in accordance with the following procedures:
(A) hearing the moderator announced that the hearing, read the hearing disciplines;
(B) check the hearing participants;
(C) the participants heard presentations;
(D) hearing the facilitator asks about the participants of the hearing;
(E) hearing host announced the end of the hearing. Nineth stage of initial review, the Ministry of Commerce 25th article of the Antimonopoly Law should make a decision on whether to conduct further review within the period.
The Commerce Department decision not to conduct further review decision, it shall notify the applicant; consider it necessary to conduct further review, should make the decision to conduct further review, and notify the applicant in writing.
The Commerce Department made the decision not to conduct further review, or fails to make a decision, involved in the concentration the concentration can be implemented.
Article tenth further review stage, the Commerce Department considers a concentration has or may have the effect of eliminating or restricting competition, their objections should be involved in the concentration of business operators, and set to allow participation of the undertakings concerned to submit a written defense of reasonable time. Written plea of the participation of the undertakings concerned shall include the relevant facts and reasons, and provided the appropriate evidence.
Participation of the undertakings concerned fails to submit a written defense, considered the objections raised no objection.
11th article in the review process, in order to eliminate or reduce a concentration has or may have the effect of eliminating or restricting competition, participation of the undertakings can propose an adjustment of centralized trading programmes restrictive conditions.
In accordance with the centralized trading circumstances, limiting conditions can include the following types:
(A) stripping to participate in some of the assets of the undertakings or businesses, such as structural conditions;
(B) participation of the undertakings concerned to open up their network or platform infrastructure, licensing key technologies (including patents, know-how or other intellectual property rights), termination of the exclusivity agreement and other behavioral conditions;
(C) the combination of structural and behavioral conditions general conditions. Article 12th set restrictive conditions of the operator should be able to eliminate or reduce a concentration has or may have the effect of eliminating or restricting competition, and the operability of the reality.
Restrictive conditions of the written text should be clear and explicit, in order to be able to fully assess its effectiveness and feasibility.
13th article in the review process, in order to eliminate or reduce a concentration has or may have the effect of eliminating or restricting competition, the Ministry of Commerce and the participation of the undertakings can propose changes to the restrictive conditions of observations and recommendations. 14th Ministry of Commerce shall be in the anti-monopoly law 26th deadline prohibitions or not to prohibit the concentration of decision and notify the applicant in writing. Not to prohibit the concentration of business operators, MOFCOM may decide additional reduction set restrictive conditions have an adverse effect on competition.
Department of Commerce further review before a decision is made, involved in the concentration the concentration shall not be implemented.
Concentration of Commerce not prohibited or fails to make a decision, involved in the concentration the concentration can be implemented.
15th for additional restrictive conditions to approving the concentration of business operators, the Ministry shall perform restrictive conditions on the participation of the undertakings carry out supervision and inspection, participation of the undertakings concerned shall report the matter to the Ministry of Commerce by the specified deadline the implementation of restrictive conditions.
Participation of the undertakings concerned is not under restrictive conditions to fulfil obligations, the Ministry may order the correction within; participation of the undertakings concerned is not corrected within the time limit specified, MOFCOM may be dealt with in accordance with the relevant provisions of the antitrust laws.
16th Ministry of Commerce, the Declaration, as well as other units and individuals in concentration review clients ' business secrets and other confidential information confidential. 17th these measures come into force on January 1, 2010.
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