Interim Measures For The Investigation And Handling Of Failing To Declare A Concentration

Original Language Title: 未依法申报经营者集中调查处理暂行办法

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Interim measures for the investigation and handling of failing to declare a concentration

    (December 30, 2011 Ministry of Commerce [2011] the 6th release come into force February 1, 2012) first to standardize the reached standards for declaration of investigation and handling of failing to declare a concentration, in accordance with the People's Republic of China anti-monopoly law (hereinafter referred to as the Antimonopoly Act) and the State Council on the standard provisions on the Declaration of concentrations of undertakings (hereinafter referred to as the regulations) relevant provisions of these measures.

Article fails to declare a concentration in these measures refers to the concentration of business operators comply with the provisions of the set of reporting standards, the operator fails to comply with the provisions of the anti-monopoly law prior declaration to the Ministry of Commerce and the implementation of the concentration.

    Banking institutions, securities companies and futures companies, fund management companies and insurance companies, calculation of the turnover, shall apply to the financial sector turnover calculation of concentration Declaration.

Article III Ministry of Commerce is responsible for the investigation and handling of failing to declare a concentration of work.

    Department of Commerce in accordance with the needs, and may appoint a provincial Commerce authorities to assist in the investigation fails to declare a concentration within the local area. Fourth on suspicion of failing to declare a concentration, all units and individuals have the right to report to the Ministry of Commerce.

MOFCOM shall keep their informants confidential.

Report in writing and provide informants and whistle-blowers, arrested for failing to declare a concentration of the relevant facts and evidence of, the Ministry of Commerce shall make the necessary verification.

    For otherwise learned, was arrested for failing to declare a concentration-related facts and evidence, the Commerce Department can make the necessary verification.

Article fifth preliminary facts and evidence show that there are suspected of failing to declare a concentration, the Ministry of Commerce shall be filed, and notify the business operators under investigation.

    The operators under investigation in these measures refers to the measures for the Declaration of concentrations of undertakings provided for in the Nineth of obligation to declare one.

    Sixth being investigated by the operator shall, within 30 days of filing the notice, to the Ministry of Commerce submitted and investigated whether a transaction belongs to the concentration of business operators, whether reporting standards, are in place and are not application of related documents and materials.

The seventh Ministry of Commerce shall receive the operators under investigation in accordance with this article sixth submitted documents and materials within 60 days from the date, whether the transactions being investigated is not legally declare a concentration to complete the preliminary investigation. Are failing to declare a concentration, the Ministry further investigations should be carried out, and notify the business operators under investigation.

Operators should concentrate of the suspension.

    Not part of failing to declare a concentration, the Ministry decided not to apply for further investigation should be made, and notify the business operators under investigation.

Eighth Ministry of Commerce decided to further investigate, the operators under investigation should be from the Commerce Department notice in writing is received within 30th of, in accordance with the measures for the Declaration of concentrations of undertakings of the provisions submitted to the Ministry of Commerce of related documents and materials.

MOFCOM shall receive survey submitted by the operator in accordance with the provisions of the preceding paragraph files, 180 days of the date of information, completed further investigations.

    On further investigation, the Ministry of Commerce shall be in accordance with the anti-monopoly law and the concentration measures for the examination of the relevant provisions being investigated whether the transaction has or may have the effect of eliminating or restricting competition.

    Nineth Department of Commerce investigation can take the anti-monopoly law measures provided for in the 39th.

Tenth Ministry of Commerce investigation fails to declare a concentration, the investigator shall not be less than 2 and shall produce proper identification.

    Investigators conduct inquiries and investigations, a record shall be kept and signed by the person being interrogated or investigated. 11th in the investigation process, the business operators under investigation, interested parties have the right to be heard.

    MOFCOM shall be business operators under investigation, interested parties submitted to verify the facts, reasons and evidence.

    12th survey of operators, stakeholders and other relevant organizations or individuals shall coordinate with the Ministry of Commerce shall perform their duties, and may not refuse or impede the investigation of Ministry of Commerce.

Investigation concludes that the investigation by the 13th set of operators failing to declare and implement, the Ministry can be fined not more than 500,000 Yuan by the business operators under investigation, and may order him to be investigated before the operators to adopt the following measures to restore to the set of States:

(A) the discontinuation of the concentration;

(B) dispose of the shares or assets of limited duration;

(C) transfers business of limited duration;

(D) other measures necessary.

    When dealing with the Department of Commerce pursuant to the preceding paragraph, should take into account fails to declare the nature, degree and duration of, and competition based on this approach the eighth article assessment results and other factors.

Article the 13th of 14th Ministry of Commerce on the basis of this approach before making a decision, findings, and should be based on the facts and evidence to inform the business operators under investigation. Surveyed operators should submit written comments within the time limit set by the Ministry of Commerce.

    Written comments should include the relevant facts and evidence. The 15th Ministry of Commerce shall be in accordance with this approach the 13th section of its decision in writing notify the business operators under investigation.

    For failing to declare a concentration of treatment decisions can be announced to the public.

    16th a survey of Department of commerce law, refused to provide materials, information, or provide false information, or conceal, destroy evidence, transfer, or other refuse or obstruct the investigation, the Ministry of Commerce according to the anti-monopoly law provides for punishment of the 52nd.

Article 17th required written document being served on the business operators under investigation, served in the light of the People's Republic of China relevant provisions of the code of civil procedure.

    Department of commerce service by service by publication, shall be published on the official website of the Ministry of Commerce, documents to be served.

    Article 18th Ministry of Commerce is dissatisfied with a decision made pursuant to these measures, may apply for administrative reconsideration of administrative review decision, you can file an administrative lawsuit in accordance with law.

    19th Ministry of Commerce, the business operators under investigation, as well as other units and individuals in the course of investigation should be aware of business secrets and other confidential information confidential, but according to the laws and regulations shall be disclosed or prior trade secret rights except with the consent of the people.

    20th Ministry of Commerce personnel who abuse their powers, neglect their duties, engage or reveal business secrets obtained in the course of law enforcement, to constitute a crime, criminal responsibility shall be investigated according to law; does not constitute a crime, he shall be subject to punishment. 21st article this way come into force February 1, 2012.

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