Recently, Decree No.64 of the State Administration of Market Supervision and Administration promulgated the Provisions on Stopping Abuse of Administrative Power to Eliminate and Restrict Competition, which came into effect on April 15, 2023.
Market Supervision authorizes the market supervision and administration departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government (hereinafter referred to as the provincial market supervision departments) to be responsible for the anti-monopoly law enforcement of the abuse of administrative power to exclude and restrict competition within their respective administrative areas. The anti-monopoly law enforcement agencies referred to in
these Provisions include the General Administration of Market Supervision and the provincial market supervision departments. Article
3 The General Administration of Market Supervision shall be responsible for investigating the following acts of abusing administrative power to eliminate or restrict competition and putting forward suggestions on handling them according to law (hereinafter referred to as investigation and handling):
(1) acts that have an impact on the whole country;
(2) acts implemented by the people's government at the provincial level;
(3) The case is complicated or the General Administration of Market Supervision deems it necessary to investigate and deal with it directly. The General Administration of Market Supervision may designate provincial market supervision departments to investigate and deal with the abuse of administrative power to exclude or restrict competition listed in the
preceding paragraph. When investigating and dealing with the abuse of administrative power to exclude or restrict competition, the
provincial market supervision department shall report to the General Administration of Market Supervision in a timely manner if it finds that it does not fall within the scope of investigation and punishment of the department, or if it falls within the scope of investigation and punishment of the department, but it is necessary to be investigated and punished by the General Administration of Market Supervision. Article
4 Administrative organs and organizations authorized by laws and regulations to manage public affairs shall not abuse their administrative power to carry out the following acts. Restricting or restricting in disguised form the operation, purchase or use of commodities or services (hereinafter referred to as commodities) provided by the operators designated by a unit or individual:
(1) explicitly requiring, implying, refusing or delaying administrative examination and approval, filing, repeated inspection, or refusing to access the platform or network. Restricting or restricting in a disguised form the operation, purchase or use of the goods provided by specific operators;
(2) restricting or restricting in a disguised form the operation, purchase or use of the goods provided by specific operators by restricting the location, form of ownership or form of organization of the bidder;
(3) Restricting or disguising the operation, purchase and use of commodities provided by specific operators by setting up unreasonable project databases, directory databases, alternative databases and qualification databases;
(4) Other acts of restricting or disguising the operation, purchase and use of commodities provided by designated operators by units or individuals. Article
5 Administrative organs and organizations authorized by laws and regulations with the function of managing public affairs shall not abuse their administrative power to prevent other operators from entering the relevant market or treat other operators unequally by means of signing cooperati ve agreements and memorandums with operators, so as to eliminate or restrict competition. Article
6 Administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs shall not abuse their administrative power to carry out the following acts to hinder the free circulation of commodities between regions:
(1) Setting discriminatory charging items and implementing discriminatory charging standards for non-local commodities; Or stipulate discriminatory prices or implement discriminatory subsidy policies;
(2) stipulate technical requirements and inspection standards for non-local commodities that are different from those for local commodities of the same kind, or take discriminatory technical measures such as repeated inspection and certification for non-local commodities to hinder or restrict the entry of non-local commodities into the local market;
(3) To adopt administrative licensing specifically for non-local commodities, or to set different licensing conditions, procedures and time limits when implementing administrative licensing for non-local commodities, so as to hinder or restrict the entry of non-local commodities into the local market;
(4) To obstruct or restrict the entry of non-local commodities or the export of local commodities by means of setting up checkpoints, setting up shields through software or the Internet;
(5) Other acts that hinder the free circulation of commodities between regions. Article
7 Administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs shall not abuse their administrative power to carry out the following acts to exclude or restrict operators from participating in tendering and bidding and other business activities:
(1) Failing to publish information on tendering and bidding in accordance with the law;
(2) Excluding or restricting non-local operators from participating in local tendering and bidding activities and other business activities;
(3) Establishing discriminatory qualification requirements or evaluation standards;
(4) The establishment of qualifications, technical and commercial conditions that are incompatible with the actual needs or irrelevant to the performance of the contract;
(5) Other acts that exclude or restrict operators from participating in tendering and bidding activities and other business activities. Article
8 Administrative organs and organizations authorized by laws and regulations to manage public affairs shall not abuse their administrative power to carry out the following acts. Excluding, restricting, forcing or forcing in disguised form non-local operators to invest or set up branches in the locality:
(1) Refusing, forcing or forcing in disguised form non-local operators to invest or set up branches in the locality;
(2) Restricting or putting forward unreasonable requirements on the scale and mode of local investment by foreign operators, as well as the address and business model of establishing branches;
(3) To stipulate different requirements for the investment, scale of operation, mode of operation, payment of taxes and fees of non-local operators or branches established by non-local operators in terms of investment, scale of operation, mode of operation and payment of taxes and fees from local operators, and to implement discriminatory treatment in terms of safety in production, energy conservation and environmental protection, quality standards, administrative examination and approval, and filing;
(4) Other acts of excluding, restricting, forcing or forcing non-local operators to invest or set up branches locally in disguised form. Article
9 Administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs shall not abuse their administrative power to force or disguise operators to engage in monopolistic acts prescribed in the Anti-monopoly Law. Article
10 Administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs shall not abuse their administrative power to formulate and promulgate provisions containing the elimination or restriction of competition in the form of measures, decisions, announcements, notices, opinions, minutes of meetings and letters. Article
11 The Anti-monopoly Law Enforcement Agency shall, in accordance with its functions and powers, or through reporting, handing over by higher authorities, transferring by other authorities, reporting by lower authorities, etc., discover suspected abuse of administrative power to eliminate or restrict competition. Article
12 Any entity or individual shall have the right to report to the anti-monopoly law enforcement agency any suspected abuse of administrative power to exclude or restrict competition. The anti-monopoly law enforcement agency shall keep the informant confidential. Article
13 Where a report is made in written form and relevant facts and evidence are provided, the relevant anti-monopoly law enforcement authorities shall conduct necessary investigations. The written report shall generally include the following contents:
(1) the basic information of the informer;
(2) the basic information of the informer;
(3) the relevant facts and evidence of the suspected abuse of administrative power to exclude or restrict competition;
(4) Whether the same fact has been reported to other administrative organs, applied for administrative reconsideration or brought a lawsuit to the people's court. Article
14 The Anti-monopoly Law Enforcement Agency shall be responsible for the acceptance of the cases under its jurisdiction. If the market supervision department below the provincial level receives the report materials or finds the clues of the case, it shall submit the relevant materials to the provincial market supervision department within seven working days.
If the information of the informer is incomplete and the relevant facts are not clear, the accepting organ may notify the informer to make timely corrections.
For a real-name report in written form, the anti-monopoly law enforcement agency may, after the investigation and handling of the case is completed, give feedback to the informer on the results of the handling of the report according to the written request of the informer.Article
15 The anti-monopoly law enforcement agency shall decide whether to file a case or not after conducting necessary investigations into the suspected abuse of administrative power to eliminate or restrict competition. If the unit under
investigation has taken measures to stop the relevant acts and eliminate the relevant competition restrictions during the above-mentioned investigation, it may not file a case.
The provincial market supervision department shall file the case with the General Administration of Market Supervision within seven working days from the date of filing the case. Article
16 After the case is filed, the Anti-monopoly Law Enforcement Agency shall conduct investigations in a timely manner, collect and obtain evidence from relevant units and individuals according to law. The relevant units or individuals shall cooperate with the investigation. Article
17 When investigating and dealing with suspected abuse of administrative power to exclude or restrict competition, the General Administration of Market Supervision may entrust provincial market supervision departments to conduct investigations. When investigating and dealing with suspected abuse of administrative power to exclude or restrict competition,
provincial market supervision departments may entrust lower market supervision departments to conduct investigations. Within the scope of entrustment, the entrusted
market supervision department shall conduct investigations in the name of the entrusting organ, and shall not entrust other administrative organs, organizations or individuals to conduct investigations. Article
18 When investigating and dealing with suspected abuse of administrative power to exclude or restrict competition, the provincial market supervision department may consult with the relevant provincial market supervision department to assist in the investigation, and the relevant provincial market supervision department shall assist. Article
19 The units and individuals under investigation shall have the right to state their opinions, present facts, reasons and relevant evidence. The anti-monopoly law enforcement agency shall conduct verification. Article
20 After investigation, if the Anti-monopoly Law Enforcement Agency considers that it constitutes an abuse of administrative power to eliminate or restrict competition, it may make suggestions to the relevant higher authorities to deal with it according to law.
During the investigation, if the unit under investigation takes the initiative to take measures to stop the relevant acts and eliminate the relevant competition restrictions, the anti-monopoly law enforcement agency may terminate the investigation.
After investigation, if the anti-monopoly law enforcement agency considers that it does not constitute an abuse of administrative power to exclude or restrict competition, it shall end the investigation. Article
21 Where the Anti-monopoly Law Enforcement Agency makes a suggestion to the relevant superior authority to handle the matter according to law, it shall prepare an administrative proposal and send a copy to the unit under investigation. An administrative proposal shall contain the following items:
(1) the name of the entity sending the proposal;
(2) the name of the entity under investigation;
(3) the facts of the violation;
(4) the opinions stated by the entity under investigation and the adoption thereof;
(5) Suggestions and basis for handling;
(6) Time limit and requirements for correction of the unit under investigation;
(7) Name, official seal and date of the anti-monopoly law enforcement agency. The handling suggestions specified in Item 5 of the
preceding paragraph shall be able to eliminate the relevant competition restrictions, and shall be specific and clear, including the suspension of the implementation of relevant acts, the termination of relevant agreements, the suspension of the implementation of relevant memorandums, the repeal or amendment of relevant documents and the disclosure of the repeal or amendment of documents to the public. The unit under
investigation shall actively implement the corrective measures in accordance with the handling suggestions specified in the administrative proposal, and report the relevant corrections to the higher authorities and the anti-monopoly law enforcement agencies in writing within a time limit in accordance with the requirements of the anti-monopoly law enforcement agencies. Article
22 The provincial market supervision department shall report to the General Administration of Market Supervision before putting forward suggestions for handling according to law or concluding the investigation. It shall be filed with the General Administration of Market Supervision within seven working days after putting forward suggestions for handling according to law. If
the anti-monopoly law enforcement agency considers that it constitutes an abuse of administrative power to exclude or restrict competition, it shall announce it to the public according to law. Article
23 The General Administration of Market Supervision shall strengthen the guidance and supervision of provincial market supervision departments in investigating and dealing with the abuse of administrative power to exclude and restrict competition, and unify the standards of law enforcement.
Provincial market supervision departments shall strictly investigate and punish the abuse of administrative power to exclude and restrict competition in accordance with the relevant provisions of the General Administration of Market Supervision. Article
24 Where an administrative organ or an organization authorized by laws and regulations with the function of managing public affairs is suspected of violating the provisions of the Anti-monopoly Law and abusing its administrative power to exclude or restrict competition, the anti-monopoly law enforcement agency may interview its legal representative or person in charge.
The interview may point out the suspected abuse of administrative power to exclude or restrict competition, listen to the explanation of the situation, and ask them to propose improvement measures to eliminate the relevant competition restrictions. At the end of the
interview, the Anti-monopoly Law Enforcement Agency may notify the relevant superior authorities of the unit being interviewed of the interview. The provincial market supervision department shall file the interview with the General Administration of Market Supervision within seven working days. Article
25 The interview shall be approved by the principal responsible person of the Anti-monopoly Law Enforcement Agency. The Anti-monopoly Law Enforcement Agency may, if necessary, invite the relevant superior authorities of the unit to be interviewed to jointly conduct the interview.
Anti-monopoly law enforcement agencies may make public the interviews, or invite the media, trade associations, experts and scholars, relevant operators and representatives of the public to attend the interviews. Article
26 Where a relevant entity or individual refuses to provide relevant materials or information, or provides false materials or information, or conceals, destroys or transfers evidence, or has other acts of refusing or obstructing the investigation conducted by the Anti-monopoly Law Enforcement Agency, the Anti-monopoly Law Enforcement Agency shall deal with it according to law. It may also report the situation to the relevant superior organs and supervisory organs. Article
27 Any staff member of the Anti-monopoly Law Enforcement Agency who abuses his power, neglects his duty, engages in malpractices for personal gain or divulges business secrets, personal privacy and personal information known in the course of law enforcement shall be dealt with in accordance with the relevant provisions. Article
28 The clues of suspected duty violations and duty crimes of public officials discovered by the Anti-monopoly Law Enforcement Agency during the investigation shall be handed over to the disciplinary inspection and supervision organs in a timely manner. Article
29 When formulating rules, normative documents and other policies and measures concerning the economic activities of market participants, administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs shall conduct fair competition reviews in accordance with relevant provisions, assess the impact on market competition and prevent the exclusion and restriction of market competition. Those who are suspected of abusing administrative power to exclude or restrict competition shall be investigated by the anti-monopoly law enforcement agencies according to law. Article
30 Market supervision departments at all levels may actively support and promote administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs to strengthen the concept of fair competition and improve relevant policies and measures in the following ways. Maintaining the market environment for fair competition:
(1) Publicizing laws, regulations and policies on fair competition;
(2) Providing consultation on fair competition in the process of formulating policies and measures;
(3) Organizing the evaluation of the competitive impact of the implementation of relevant policies and measures, and issuing evaluation reports;
(4) organizing and conducting training and exchanges;
(5) providing work guidance and suggestions; and
(6) other competition publicity and advocacy activities conducive to improving policies and measures. Administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs are
encouraged to take the initiative to enhance the awareness of fair competition, cultivate and promote a culture of fair competition, and enhance the ability to implement fair competition policies. Article
31 These Provisions shall come into force on April 15, 2023. The Interim Provisions on Stopping Abuse of Administrative Power to Eliminate and Restrict Competition promulgated by Decree No.12 of the State Administration of Market Supervision and Administration on June 26, 2019 shall be abolished at the same time.
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