Recently, Decree No.67 of the State Administration of Market Supervision and Administration promulgated the Provisions on the Examination of Concentration of Operators, which came into effect on April 15, 2023.
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Article 2 The State Administration of Market Supervision and Administration (hereinafter referred to as the General Administration of Market Supervision) shall be responsible for the anti-monopoly examination of the concentration of business operators, and shall investigate and deal with the illegal concentration of business operators. The General Administration of
Market Supervision may entrust the market supervision and administration departments of provinces, autonomous regions and municipalities directly under the Central Government (hereinafter referred to as the provincial market supervision departments) to carry out the examination of the concentration of operators according to the needs of their work. The General Administration of
Market Supervision strengthens the guidance and supervision of the entrusted provincial market supervision departments, improves the training and management system of examiners, and ensures the scientificity, standardization and consistency of the examination work. Article
3 Operators may, through fair competition and voluntary association, implement concentration according to law, expand the scale of operation and improve market competitiveness. When carrying out the anti-monopoly review of concentration of operators, the General Administration of
Market Supervision adheres to fairness and justice and treats all operators equally according to law. Article
4 The term "concentration of business operators" as mentioned in these Provisions refers to the following circumstances as provided in Article 25 of the Anti-monopoly Law:
(1) Merger of business operators;
(2) Business operators obtain the control over other business operators by acquiring equity or assets;
(3) The operator obtains control over other operators or can exert decisive influence on other operators by means of contract or other means. Article
5 The following factors shall be taken into consideration in determining whether a business operator has obtained the right of control over other business operators or is able to exert decisive influence on other business operators:
(1) The purpose of the transaction and future plans;
(2) The equity structure of other business operators before and after the transaction and the changes in the equity structure;
(3) The voting matters and the voting mechanism of the (general) meeting of shareholders and other authorities of other operators, as well as the historical attendance rate and voting results thereof;
(4) The composition and the voting mechanism of the board of directors and other decision-making or management bodies of other operators, as well as the historical attendance rate and voting results thereof;
(5) The appointment and removal of senior management personnel of other operators;
(6) The relationship between shareholders and directors of other operators, whether there are persons entrusted to exercise voting rights or acting in concert;
(7) Whether there are significant business relations or cooperation agreements between the operator and other operators;
(Eight) other factors that should be considered. If
two or more operators have the right to control other operators or can exert decisive influence on other operators, they constitute joint control over other operators. Article
6 The General Administration of Market Supervision shall improve the classification and grading examination system for concentration of business operators. The General Administration of
Market Supervision may formulate specific review measures for the concentration of operators in important areas such as national economy and people's livelihood. The General Administration of
Market Supervision evaluates the implementation effect of the examination system of concentration of operators, and improves the examination work according to the evaluation results. Article
7 The General Administration of Market Supervision shall strengthen the construction of information system for the examination of concentration of operators, make full use of technical means, promote intelligent supervision and enhance the efficiency of the examination. Chapter
II Declaration
of Concentration of Business Operators Article 8 Where the concentration of business operators meets the declaration standards prescribed by the State Council (hereinafter referred to as the declaration standards), the business operators shall declare to the General Administration of Market Supervision in advance, and shall not implement the concentration without declaration or approval after declaration. If the concentration of
undertakings fails to meet the declaration criteria, but there is evidence to prove that the concentration of undertakings has or may have the effect of eliminating or restricting competition, the General Administration of Market Supervision may require the undertakings to declare and notify the undertakings in writing. Where the concentration has not been implemented, the business operators shall not implement the concentration without declaration or approval after declaration; where the concentration has been implemented, the business operators shall declare within 120 days from the date of receipt of the written notice, and take necessary measures such as suspending the implementation of the concentration to reduce the adverse effects of the concentration on competition. The factors for judging
whether to implement centralization include, but are not limited to, whether to complete the registration of market entities or the registration of changes in rights, the appointment of senior managers, the actual participation in business decision-making and management, the exchange of sensitive information with other operators, and substantive integration of business. Article
9 The turnover includes the income obtained by the relevant operators from selling products and providing services in the previous fiscal year, deducting relevant taxes and surcharges. The previous fiscal year mentioned in the
preceding paragraph refers to the previous fiscal year on the signing date of the concentration agreement. Article
10 The turnover of a business operator participating in concentration shall be the total turnover of the business operator and all business operators directly or indirectly controlling the business operator at the time of declaration, but excluding the turnover among the above-mentioned business operators. When the
operator acquires the component of other operators, the transferor no longer has control over the component or can not exert decisive influence, the turnover of the target operator only includes the turnover of the component. Where there are other operators under common control between the operators
participating in the concentration or between the operators participating in the concentration and the operators not participating in the concentration, the turnover of the operators participating in the concentration shall include the turnover between the operators under common control and the third party operators, which shall be calculated only once. And equally distributed among the operators participating in the concentration with common control. The calculation of the turnover of
financial operators shall be carried out in accordance with the relevant provisions on the calculation of the turnover declared by financial operators in a centralized manner. Article
11 Concentrations between the same business operators that have been carried out several times within two years and have failed to meet the reporting standards shall be regarded as one concentration, and the time of concentration shall be counted from the last transaction. The turnover of the business operators participating in the concentration shall be calculated on the basis of multiple transactions. Operators who carry out the above-mentioned acts through other operators who have a controlling relationship with them shall be dealt with in accordance with these Provisions. The term "within two years" as mentioned in the
preceding paragraph refers to the period from the date of completion of the first transaction to the date of signing the agreement for the last transaction. Article
12 The General Administration of Market Supervision shall strengthen the guidance on the declaration of concentration of business operators. Prior to the formal declaration, a business operator may file a written application for negotiation on the matters concerning the centralized declaration, and specify the specific issues to be negotiated. Article
13 In the case of a concentration of business operators implemented by way of merger, all the parties to the merger shall be the obligors to report. In the case of a concentration of business operators under other circumstances, the business operator that has obtained the control right or is able to exert decisive influence shall be the obligor to report, and other business operators shall cooperate with it. Where there are more than one declaration obligors for the
same concentration of business operators, one declaration obligor may be entrusted to declare. If the entrusted declaration obligor fails to declare, other declaration obligors shall not be exempted from the obligation of declaration. Where the declaration obligor fails to declare, other business operators participating in the concentration may file a declaration.
The declarer may declare by himself or entrust others to declare on his behalf according to law. The declarer shall select the agent strictly and prudently. The reporting agent shall be honest and trustworthy, and operate in compliance with regulations. Article
14 The declaration documents and materials shall include the following contents:
(1) Declaration. The declaration shall specify the name, domicile (business site), business scope and the scheduled date of implementation of the concentration of the business operators participating in the concentration, and shall be accompanied by the identity certificate or registration document of the declarer. The overseas declarer shall also submit the notarization document and the relevant authentication document of the local notary organ. Where an agent is entrusted to declare, a power of attorney shall be submitted.
(2) a description of the impact of the concentration on the relevant market competition. Including the overview of the concentration transaction, the definition of the relevant market, the market share of the undertakings involved in the concentration in the relevant market and their control over the market, the main competitors and their market share, the market concentration degree, the market entry, the development status of the industry, the impact of the concentration on the market competition structure, the development of the industry, technological progress, innovation, the development of the national economy, consumers and other undertakings; Effect evaluation and basis of the impact of concentration on relevant market competition.
(3) Centralization agreement. Including various forms of centralized agreement documents, such as agreements, contracts and corresponding supplementary documents.
(4) The financial and accounting reports of the operators involved in the concentration for the previous fiscal year audited by an accounting firm.
(5) Other documents and materials required to be submitted by the General Administration of Market Supervision.
The declarer shall be responsible for the authenticity, accuracy and completeness of the declaration documents and materials.
The declaration agent shall assist the declarer in examining the authenticity, accuracy and completeness of the declaration documents and materials. Article
15 The declarer shall mark the business secrets, undisclosed information, confidential business information, personal privacy or personal information in the declaration documents and materials, and submit the public and confidential versions of the declaration documents and materials at the same time. The declaration documents and materials shall be in Chinese. Article
16 The General Administration of Market Supervision shall verify the documents and materials submitted by the declarer, and if it finds that the declaration documents and materials are incomplete, it may require the declarer to submit them within the prescribed time limit. If the declarer fails to make up the declaration within the time limit, it shall be deemed to have failed to declare. Article
17 If the General Administration of Market Supervision considers that the declaration documents and materials meet the statutory requirements after verification, it shall accept them and notify the declarer in writing on the date of receipt of the complete declaration documents and materials. Article
18 Where the concentration of undertakings fails to meet the declaration criteria, and the undertakings participating in the concentration voluntarily submit the declaration of concentration of undertakings, and the General Administration of Market Supervision, after receiving the declaration documents and materials, considers it necessary to accept them, it shall examine and make a decision in accordance with the Anti-monopoly Law. Article
19 a concentration of undertakings that meets one of the following circumstances may be declared as a summary case, and the State Administration of Market Supervision shall examine it in accordance with the summary case procedure:
(1) In the same relevant market, the sum of the market shares of the undertakings participating in the concentration is less than 15%; In the upstream and downstream markets, the market share of the undertakings participating in the concentration is less than 25%; the market share of the undertakings participating in the concentration, which are not in the same relevant market and have no upstream and downstream relationship, is less than 25% in each market related to the transaction;
(2) The operator involved in the concentration establishes a joint venture outside China, and the joint venture is not engaged in economic activities in China;
(3) The operator involved in the concentration purchases the equity or assets of an overseas enterprise, and the overseas enterprise is not engaged in economic activities in China;
(4) a joint venture jointly controlled by two or more operators is controlled by one or more of them through concentration.
(1) a joint venture jointly controlled by two or more undertakings is controlled by one of the undertakings through concentration, and the undertaking and the joint venture are competitors in the same relevant market. And the sum of the market shares is more than 15%;
(2) It is difficult to define the relevant market involved in the concentration of business operators;
(3) The concentration of business operators may have an adverse impact on market access and technological progress;
(4) The concentration of business operators may have adverse effects on consumers and other relevant business operators;
(5) The concentration of business operators may have adverse effects on the development of the national economy;
(6) Other circumstances that the General Administration of Market Supervision considers may have adverse effects on market competition. Article
21 After accepting a simple case, the General Administration of Market Supervision shall publicize the basic information of the case for a period of ten days. The basic information of the publicized case shall be filled in by the declarer.
For the declaration of summary cases that do not meet the standard of summary cases, the General Administration of Market Supervision shall return them and require the declarer to re-declare them as non-summary cases. Chapter
III Examination
of Concentration of Business Operators Article 22 The General Administration of Market Supervision shall, within 30 days from the date of acceptance, conduct a preliminary examination of the declared concentration of business operators, make a decision on whether to carry out further examination, and notify the declarer in writing. If the General Administration of
Market Supervision decides to carry out further examination, it shall complete the examination within 90 days from the date of the decision, make a decision on whether to prohibit the concentration of operators, and notify the declarer in writing. If the circumstances specified in the second paragraph of Article 31 of the Anti-monopoly Law are met, the General Administration of Market Supervision may extend the examination period specified in this paragraph to a maximum of 60 days. Article
23 In the course of examination, if the circumstances specified in Article 32 of the Anti-monopoly Law occur, the General Administration of Market Supervision may decide to suspend the calculation of the examination period for concentration of business operators and notify the declarer in writing, and the examination period shall be suspended from the date of making the decision.
From the date of elimination of the suspension of the calculation of the examination period, the examination period shall continue to be calculated, and the General Administration of Market Supervision shall notify the applicant in writing. Article
24 In the course of examination, if the applicant fails to submit documents and materials in accordance with the provisions, which makes the examination impossible, the General Administration of Market Supervision shall notify the applicant in writing to make corrections within the prescribed time limit. If the declarer fails to make corrections within the prescribed time limit, the General Administration of Market Supervision may decide to suspend the calculation of the examination period. After the
applicant submits the documents and materials as required, the time limit for examination shall continue to be calculated. Article
25 In the process of examination, if there are new situations and facts that have a significant impact on the examination of concentration of business operators, which will lead to the failure of the examination without verification, the General Administration of Market Supervision may decide to suspend the calculation of the examination period.
After verification, if the examination work can be carried out, the examination period shall continue to be calculated. Article
26 At the stage when the General Administration of Market Supervision evaluates the commitment scheme with additional restrictive conditions submitted by the applicant, the applicant requests to suspend the calculation of the examination period, and the General Administration of Market Supervision may decide to suspend the calculation of the examination period if it deems it necessary. After the evaluation of the commitment scheme
with additional restrictive conditions is completed, the review period shall continue to be calculated. Article
27 Before the General Administration of Market Supervision makes a decision on the examination, if the declarer requests to withdraw the declaration of concentration of business operators, he shall submit a written application and explain the reasons. With the consent of the General Administration of Market Supervision, the declarer may withdraw the declaration. If the
centralized transaction or the relevant market competition situation has changed significantly and needs to be re-declared, the declarer shall apply for withdrawal. Where the declaration of concentration is
withdrawn, the examination procedure shall be terminated. The approval of the General Administration of Market Supervision to withdraw the declaration shall not be deemed as approval of the concentration. Article
28 In the process of examination, the General Administration of Market Supervision may, according to the needs of the examination work, require the declarer to supplement relevant documents and materials within the prescribed time limit, and communicate with the declarer and his agent on matters related to the declaration.
The declarer may, on its own initiative, provide relevant documents and materials that are helpful to the examination and decision on the concentration of business operators. Article
29 In the process of examination, the operators participating in the concentration may make written statements on the relevant declaration matters to the General Administration of Market Supervision by means of letters, faxes and e-mails, and the General Administration of Market Supervision shall listen to them. Article
30 In the process of examination, the General Administration of Market Supervision may, according to the needs of the examination work, listen to the opinions of relevant government departments, trade associations, operators, consumers, experts and scholars by means of written solicitation, seminars, demonstration meetings, questionnaires, entrusted consultation and on-the-spot investigation. Article
31 The following factors shall be taken into consideration in the examination of a concentration of business operators:
(1) the market share of the business operators involved in the concentration in the relevant market and their control over the market;
(2) the degree of market concentration in the relevant market; The impact of the concentration of
business operators on market entry and technological progress;
the impact of the concentration of business operators on consumers and other relevant business operators;
the impact of the concentration of business operators on the development of the national economy;
(Six) other factors that should be considered to affect market competition. Article
32 In assessing the competitive impact of a concentration of undertakings, the ability, motivation and possibility of the relevant undertakings to exclude or restrict competition individually or jointly may be examined.If the
concentration involves upstream and downstream markets or related markets, the ability, motivation and possibility of relevant operators to exclude or restrict competition in other markets by using their control power in one or more markets may be examined. Article
33 In evaluating the control power of the operators participating in the concentration over the market, the market share of the operators participating in the concentration in the relevant market, the degree of substitution of products or services, the ability to control the sales market or the raw material procurement market, the financial and technical conditions, and the ability to master and process data may be taken into account. As well as the market structure of the relevant market, the production capacity of other operators, the purchasing power of downstream customers and the ability to switch suppliers, and the offset effect of potential competitors.
To assess the market concentration of the relevant market, factors such as the number of operators and market share of the relevant market can be taken into account. Article
34 In assessing the impact of concentration of business operators on market entry, consideration may be given to the situation in which business operators influence market entry by controlling production factors, sales and procurement channels, key technologies, key facilities and data, and to the possibility, timeliness and adequacy of entry. To
evaluate the impact of concentration of business operators on technological progress, we can consider the impact of concentration of business operators on the power and ability of technological innovation, investment and utilization of technological research and development, and integration of technological resources. Article
35 In assessing the impact of a concentration of business operators on consumers, the impact of a concentration of business operators on the quantity, price, quality and diversification of products or services may be taken into account. In
assessing the impact of the concentration of business operators on other relevant business operators, the impact of the concentration of business operators on the market entry, trading opportunities and other competitive conditions of business operators in the same relevant market, upstream and downstream markets or related markets may be considered. Article
36 When assessing the impact of the concentration of business operators on the development of the national economy, the impact of the concentration of business operators on economic efficiency, business scale and the development of related industries may be taken into account. Article
37 In assessing the competitive impact of concentration of business operators, factors such as the impact of concentration on public interests and whether the business operators involved in the concentration are enterprises on the verge of bankruptcy may also be taken into account. Article
38 Where the General Administration of Market Supervision considers that the concentration of undertakings has or may have the effect of eliminating or restricting competition, it shall inform the declarer and set a reasonable time limit for the undertakings participating in the concentration to submit their written opinions. The written opinions of the operators
participating in the concentration shall include relevant facts and reasons, and provide corresponding evidence. If the operators involved in the concentration fail to submit written opinions within the time limit, they shall be deemed to have no objection. Article
39 In order to reduce the effect of exclusion or restriction of competition that concentration has or may have, the operators participating in concentration may propose a commitment scheme with additional restrictive conditions to the General Administration of Market Supervision. The General Administration of
Market Supervision shall evaluate the effectiveness, feasibility and timeliness of the commitment scheme and notify the applicant of the evaluation results in a timely manner. If the General Administration of
Market Supervision considers that the commitment scheme is insufficient to reduce the adverse effects of concentration on competition, it may consult with the operators participating in the concentration on restrictive conditions and require them to propose other commitment schemes within a reasonable period of time. Article
40 The restrictive conditions may include the following types according to the specific circumstances of the centralized transaction of business operators:
(1) Structural conditions such as stripping tangible assets, intellectual property rights, data and other intangible assets or related rights and interests (hereinafter referred to as stripping business);
(2) Open infrastructure such as its network or platform, license key technologies (including patents, proprietary technologies or other intellectual property rights), terminate exclusive or exclusive agreements, maintain independent operation, modify platform rules or algorithms, promise compatibility or do not reduce the level of interoperability and other behavioral conditions;
(3) Comprehensive conditions combining structural conditions with behavioral conditions.
The divestiture business should generally have all the elements necessary for effective competition in the relevant market, including tangible assets, intangible assets, equity, key personnel and interests such as customer agreements or supply agreements. The object of divestiture may be the subsidiary, branch or business department of the operator participating in the concentration. Article
41 Where there is a risk that the commitment scheme cannot be implemented, the operators participating in the concentration may propose alternative schemes. The alternative should take effect after the preferred alternative has failed to be implemented and should be more restrictive than preferred alternative. If the
commitment scheme is divestiture, but one of the following circumstances exists, the operator participating in the concentration may propose a specific buyer and divestiture time in the commitment scheme:
(1) there are greater difficulties in divestiture;
(2) There is a greater risk of maintaining the competitiveness and marketability of the divested business before the divestiture;
(3) The identity of the buyer has an important impact on whether the divested business can resume market competition;
(4) Other circumstances deemed necessary by the General Administration of Market Supervision. Article
42 For the concentration of undertakings that have or may have the effect of eliminating or restricting competition, the General Administration of Market Supervision may make a decision on the approval of additional restrictive conditions if the commitment scheme of additional restrictive conditions put forward by the undertakings participating in the concentration can effectively reduce the adverse effects of the concentration on competition. If the undertakings
participating in the concentration fail to put forward a commitment scheme with additional restrictive conditions within the prescribed time limit, or the proposed commitment scheme fails to effectively reduce the adverse effects of concentration on competition, the General Administration of Market Supervision shall make a decision to prohibit the concentration of undertakings. Article
43 Any entity or individual may report in writing to the General Administration of Market Supervision and provide relevant facts and evidence if it finds that the concentration of undertakings fails to meet the declaration criteria but has or may have the effect of eliminating or restricting competition. After verification, the General Administration of
Market Supervision shall deal with the concentration of undertakings that fail to meet the declaration criteria in accordance with Article 8 of these Provisions if there is evidence that it has or may have the effect of eliminating or restricting competition. Chapter
IV Supervision and Implementation
of Restrictive Conditions Article 44 For a concentration of undertakings approved with additional restrictive conditions, the obligor shall strictly perform the obligations stipulated in the examination decision and report the performance of the restrictive conditions to the General Administration of Market Supervision in accordance with the provisions. The General Administration of
Market Supervision may supervise and inspect the obligor's performance of restrictive conditions by itself or through the trustee. If it passes the trustee's supervision and inspection, the General Administration of Market Supervision shall make it clear in the examination decision. The trustee includes the supervising trustee and the stripping trustee. The term
"obligor" refers to the business operator who is required to perform the relevant obligations in the examination decision approving the concentration of business operators with additional restrictive conditions.
Supervisory trustee refers to the natural person, legal person or non-legal organization entrusted by the obligor and determined by the General Administration of Market Supervision, which is responsible for supervising the implementation of restrictive conditions by the obligor and reporting to the General Administration of Market Supervision.
The divestiture trustee refers to the natural person, legal person or unincorporated organization entrusted by the obligor and assessed by the General Administration of Market Supervision, which is responsible for selling the divestiture business and reporting to the General Administration of Market Supervision at the stage of divestiture. Article
45 If the trustee passes the supervision and inspection, the obligor shall submit the candidate for the trustee to the General Administration of Market Supervision within 15 days from the date when the General Administration of Market Supervision makes the decision on the examination. If the restrictive condition is divestiture, the obligor shall submit the candidate for divestiture trustee to the General Administration of Market Supervision 30 days before entering the stage of entrusted divestiture. The obligor shall select the trustee strictly and prudently, and shall be responsible for the authenticity, completeness and accuracy of the relevant documents and materials. The candidate for the trustee shall meet the following specific requirements:
(1) Be honest and trustworthy, and operate in compliance with regulations;
(2) Be willing to serve as the trustee;
(3) Be independent of the obligor and the buyer of the divested business;
(4) Having a professional team to perform the duties of the trustee, and the members of the team shall have the professional knowledge, skills and relevant experience required to supervise the restrictive conditions;
(5) Being able to propose a feasible work plan;
(6) He has not been punished in the course of acting as a trustee in the past five years;
(7) Other requirements put forward by the General Administration of Market Supervision. After
the obligor formally submits the trustee candidate, the trustee candidate shall not give up participating in the trustee evaluation without justified reasons. Under
normal circumstances, the General Administration of Market Supervision shall select and evaluate the candidates submitted by the obligor to determine the trustee.However, if the obligor fails to submit the trustee candidates within the prescribed time limit and fails to submit them on time after another written notice, or the candidates submitted twice do not meet the requirements, which makes it difficult for the supervision and implementation to proceed normally, the General Administration of Market Supervision may guide the obligor to select qualified trustees. After the
trustee is determined, the obligor shall sign a written agreement with the trustee to clarify their respective rights and obligations and report to the General Administration of Market Supervision for approval. The trustee shall perform his duties diligently and dutifully. The obligor shall pay the trustee's remuneration and provide the trustee with necessary support and convenience. Article
46 Where the restrictive condition is divestiture, the divestiture obligor shall, within the time limit specified in the examination decision, find a suitable divestiture business buyer, sign a sale agreement, and complete the divestiture after approval by the General Administration of Market Supervision. If the divestiture obligor fails to complete the divestiture within the prescribed time limit, the General Administration of Market Supervision may require the obligor to entrust the divestiture trustee to find a suitable divestiture business buyer within the prescribed time limit. The buyer of the divested business shall meet the following requirements:
(1) it shall be independent of the operators participating in the concentration;
(2) it shall have the necessary resources and capabilities and be willing to use the divested business to participate in market competition;
(3) it shall obtain the approval of other regulatory authorities;
(4) It shall not finance the purchase of stripping business from the operators participating in the concentration;
(5) Other requirements put forward by the General Administration of Market Supervision according to the specific circumstances of the case. When
the buyer has or can obtain part of the assets or rights and interests in the divestiture business from other means, it may apply to the General Administration of Market Supervision for necessary adjustment of the scope of the divestiture business. Article
47 In principle, there shall be no less than three candidates for the supervision trustee, the divestiture trustee and the divestiture business buyer submitted by the obligor to the General Administration of Market Supervision for examination. Under special circumstances, with the consent of the General Administration of Market Supervision, the above candidates may be less than three. The General Administration of
Market Supervision shall examine the trustee and entrustment agreement, the buyer of the divestiture business and the sale agreement submitted by the obligor to ensure that they meet the requirements of the examination decision. If the
restrictive condition is divestiture, the time used for the above-mentioned examination by the General Administration of Market Supervision shall not be included in the divestiture period. Article
48 If the examination decision does not stipulate the time limit for self-divestiture, the divestiture obligor shall find a suitable buyer and sign a sale agreement within six months from the date of making the examination decision. Upon the application of the divestiture obligor and the explanation of the reasons, the General Administration of Market Supervision may extend the period of self-divestiture at its discretion, but the extension shall not exceed three months. If the
examination decision does not stipulate the time limit for the entrusted divestiture, the divestiture trustee shall find a suitable buyer and sign a sale agreement within six months from the date of the commencement of the entrusted divestiture. Article
49 The divestiture obligor shall sign a sale agreement with the buyer after the examination and approval of the buyer and the sale agreement by the General Administration of Market Supervision, and transfer the divestiture business to the buyer within three months from the date of signing, and complete the relevant legal procedures such as the transfer of ownership. Upon the application of the divestiture obligor and the explanation of the reasons, the General Administration of Market Supervision may extend the period of business transfer at its discretion. Article
50 Where the buyer's purchase of divestiture business approved by the General Administration of Market Supervision meets the declaration criteria, the operator who has obtained the control right shall declare it to the General Administration of Market Supervision as a new concentration of operators. The divestiture obligor shall not sell the divestiture business to the buyer before the General Administration of Market Supervision makes a decision on the examination. Article
51 Prior to the completion of the divestiture, in order to ensure the continuity, competitiveness and marketability of the divested business, the divestiture obligor shall perform the following obligations:
(1) to maintain the independence between the divested business and the business it retains; And take all necessary measures to manage the divested business in a manner most in line with the development of the divested business;
(2) not to implement any act that may adversely affect the divested business, including hiring key employees of the divested business, obtaining business secrets or other confidential information of the divested business, etc.;
(3) Appoint a special manager to be responsible for managing the divestiture business. The manager shall perform its duties under the supervision of the supervision trustee, and its appointment and replacement shall be approved by the supervision trustee;
(4) ensure that the potential buyer can obtain sufficient information about the divested business in a fair and reasonable manner, and evaluate the commercial value and development potential of the divested business;
(5) To provide necessary support and convenience to the Buyer as required to ensure the smooth handover and stable operation of the divested business;
(6) To hand over the divested business to the Buyer in a timely manner and perform relevant legal procedures. Article
52 The supervisory trustee shall perform the following duties under the supervision of the General Administration of Market Supervision:
(1) The supervisory obligor shall perform the obligations stipulated in these Provisions, the examination decisions and the relevant agreements;
(2) To evaluate the buyer candidates recommended by the divestiture obligors and the sale agreement to be signed, and submit an evaluation report to the General Administration of Market Supervision;
(3) To supervise the implementation of the sale agreement of the divestiture business, and submit a supervision report to the General Administration of Market Supervision on a regular basis;
(4) To coordinate the disputes between the divestiture obligor and the potential buyer on the divestiture matters;
(5) To submit other reports related to the obligor's performance of the restrictive conditions in accordance with the requirements of the General Administration of Market Supervision.
Without the consent of the General Administration of Market Supervision, the supervisory trustee shall not disclose various reports and related information submitted to the General Administration of Market Supervision in the course of performing its duties. Article
53 In the stage of entrusted divestiture, the divestiture trustee shall be responsible for finding a buyer for the divestiture business and reaching a sale agreement.
The divestiture trustee has the right to sell the divested business without a reserve price. Article
54 The time limit for attaching restrictive conditions shall be stipulated in the review decision.
According to the examination decision, if the restrictive conditions expire automatically, the restrictive conditions shall be automatically lifted if the obligor does not violate the examination decision after verification and confirmation by the General Administration of Market Supervision. If the obligor violates the examination decision, the General Administration of Market Supervision may appropriately extend the time limit for additional restrictive conditions and publish it to the public in a timely manner.
According to the examination decision, if the obligor needs to apply for rescission after the expiration of the restrictive conditions, the obligor shall submit a written application and explain the reasons. If the General Administration of Market Supervision decides to lift the restrictive conditions after evaluation, it shall publish them to the public in a timely manner.
The restrictive condition is stripping, and after verification and confirmation by the General Administration of Market Supervision, if the obligor fulfills all obligations, the restrictive condition will be automatically lifted. Article
55 During the effective period of the examination decision, the General Administration of Market Supervision may, on its own initiative or upon the application of the obligor, re-examine the restrictive conditions, change or lift the restrictive conditions. If the General Administration of Market Supervision decides to change or lift the restrictive conditions, it shall announce them to the public in a timely manner. The General Administration of
Market Supervision shall consider the following factors when changing or lifting the restrictive conditions:
(1) whether there is a major change in the centralized trading party;
(2) whether there is a substantial change in the relevant market competition;
(3) Whether it is unnecessary or impossible to impose restrictive conditions;
(4) Other factors that should be taken into consideration. Chapter
V Investigation
of Illegal Concentrations of Business Operators Article 56 Where a concentration of business operators meets the criteria for declaration, but the business operators fail to declare the implementation of the concentration, implement the concentration without approval after declaration, or violate the decision of examination, an investigation shall be conducted in accordance with the provisions of this Chapter. Where the concentration of undertakings
fails to meet the declaration standards and the undertakings fail to declare in accordance with Article 8 of these Provisions, the General Administration of Market Supervision shall conduct an investigation in accordance with the provisions of this Chapter. Article
57 Any entity or individual shall have the right to report to the General Administration of Market Supervision any suspected illegal concentration of business operators. The General Administration of Market Supervision shall keep the informant confidential. Where the
report is in written form and provides the basic information of the informer and the informer, the relevant facts and evidence of the suspected illegal concentration of operators, the General Administration of Market Supervision shall conduct necessary verification.
For a real-name report in written form, the General Administration of Market Supervision may, at the request of the informer, give feedback to him on the results of the report.
The General Administration of Market Supervision shall keep strictly confidential the state secrets learned in the handling of reports and the information that may endanger national security, public security, economic security and social stability after being made public. Article
58 Where preliminary facts and evidence show that there is a suspicion of illegal concentration of operators, the General Administration of Market Supervision shall file a case and notify the operators under investigation in writing. Article
59 The operator under investigation shall, within 30 days from the date of service of the notice of filing a case, submit to the General Administration of Market Supervision relevant documents and materials such as whether it belongs to the concentration of operators, whether it meets the standards for declaration, whether it declares or whether it violates the law. Article
60 The General Administration of Market Supervision shall, within 30 days from the date of receipt of the documents and materials submitted by the operators under investigation in accordance with Article 59 of these Provisions, complete a preliminary investigation on whether the transactions under investigation belong to the illegal implementation of concentration of operators. If the concentration of operators
is illegal, the General Administration of Market Supervision shall make a decision to carry out further investigation and notify the operators under investigation in writing. The operator shall stop the illegal act. If it
is not an illegal concentration of operators, the General Administration of Market Supervision shall make a decision not to carry out further investigation and notify the operators under investigation in writing. Article
61 Where the General Administration of Market Supervision decides to carry out further investigation, the operators under investigation shall, within 30 days from the date of receipt of the written notice from the General Administration of Market Supervision, submit relevant documents and materials to the General Administration of Market Supervision in accordance with the provisions of these Provisions on the declaration documents and materials of concentration of operators. The General Administration of
Market Supervision shall complete the further investigation within 120 days from the date of receiving the documents and materials submitted by the operators under investigation that conform to the provisions of the preceding paragraph.
In the further investigation stage, the General Administration of Market Supervision shall, in accordance with the Anti-monopoly Law and these Provisions, assess whether the transaction under investigation has or may have the effect of excluding or restricting competition. Article
62 In the course of the investigation, the business operators and interested parties under investigation shall have the right to state their opinions. The General Administration of Market Supervision shall verify the facts, reasons and evidence put forward by the operators and interested parties under investigation. Article
63 Before making a decision on administrative penalty, the General Administration of Market Supervision shall inform the operator under investigation of the contents, facts, reasons and basis of the administrative penalty to be imposed, and inform the operator under investigation of his rights to state, defend and request a hearing according to law. If the operator
under investigation fails to exercise the right of statement and defense within five working days from the date of service of the notice and fails to request a hearing, it shall be deemed to have waived this right. Article
64 The General Administration of Market Supervision shall make a decision on the illegal concentration of business operators according to law and may publish it to the public. Article
65 Where the General Administration of Market Supervision orders operators to take necessary measures to restore the pre-centralized state, the supervision and implementation of relevant measures shall be carried out with reference to Chapter IV of these Provisions. Chapter
VI Legal Liability
Article 66 Where an operator implements concentration in violation of the provisions of the Anti-monopoly Law, it shall be punished in accordance with the provisions of Article 58 of the Anti-monopoly Law. Article
67 Where the General Administration of Market Supervision 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, the General Administration of Market Supervision shall order it to make corrections, and the General Administration of Market Supervision shall order it to make corrections. A fine of less than 1% of the sales amount of the previous year shall be imposed on a unit, and a fine of less than 5 million yuan shall be imposed on an individual if there is no sales amount in the previous year or the sales amount is difficult to calculate. Article
68 When investigating and dealing with the illegal concentration of undertakings in accordance with the Anti-monopoly Law and these Provisions, the General Administration of Market Supervision shall consider such factors as the time of the implementation of the concentration, whether it has or may have the effect of eliminating or restricting competition and its duration, and the circumstances of eliminating the consequences of the illegal acts. If
a party voluntarily reports an illegal act that the General Administration of Market Supervision has not yet grasped and voluntarily eliminates or mitigates the harmful consequences of the illegal act, the General Administration of Market Supervision shall give a lighter or mitigated punishment in accordance with Article 32 of the Administrative Punishment Law of the People's Republic of China. Article
69 Where the General Administration of Market Supervision imposes administrative penalties on operators in accordance with the Anti-monopoly Law and Articles 66 and 67 of these Provisions, it shall record the credit records in accordance with Article 64 of the Anti-monopoly Law and the relevant provisions of the State and publicize them to the public. Article 70
The declarer shall strengthen the management of agency acts and bear corresponding responsibilities according to law. If the
declaring agent intentionally conceals the relevant information, provides false materials or commits other acts to obstruct the examination and investigation of the case of concentration of business operators, the General Administration of Market Supervision shall investigate and deal with the case according to law and make it public, and may make suggestions to the relevant departments. Article
71 Where the trustee fails to meet the requirements for performing his duties, abandons his duties without justified reasons, fails to perform his duties as required, or has other acts to obstruct the supervision and execution of the case of concentration of business operators, the General Administration of Market Supervision may require the obligor to replace the trustee, and may give the trustee a warning, circulate a notice of criticism, and impose a fine of less than 100000 yuan. Article
72 If the buyer of the divestiture business fails to fulfill its obligations in accordance with the provisions and affects the implementation of the restrictive conditions, the General Administration of Market Supervision shall order it to make corrections and impose a fine of less than 100000 yuan. Article
73 In case of violation of Chapter IV of the Anti-monopoly Law and these Provisions, if the circumstances are particularly serious, the impact is particularly bad and the consequences are particularly serious, the General Administration of Market Supervision may impose a fine of not less than two times but not more than five times the amount of the fine stipulated in Articles 58 and 62 of the Anti-monopoly Law and Articles 66 and 67 of these Provisions. Article
74 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. During the investigation,
the anti-monopoly law enforcement agencies shall promptly transfer the clues of suspected duty violations and duty crimes of public officials to the disciplinary inspection and supervision organs. Chapter
VII Supplementary Provisions
Article 75 The General Administration of Market Supervision and other units and individuals shall assume the obligation of confidentiality for the business secrets, undisclosed information, confidential business information, personal privacy and personal information they know, except those that should be disclosed in accordance with the provisions of laws and regulations or with the prior consent of the obligee.
Article 76 Where these Provisions do not provide for the procedures for investigation and punishment of illegal concentration of business operators, they shall be implemented in accordance with the Provisions on Procedures for Administrative Penalties for Market Supervision and Administration, except for the provisions on time limit, filing of cases and jurisdiction of cases.
In the process of examination or investigation, the General Administration of Market Supervision may organize hearings. The hearing procedure shall be carried out in accordance with the Interim Provisions on Administrative Licensing Procedures for Market Supervision and Administration and the Hearing Measures for Administrative Penalties for Market Supervision and Administration. Article
77 Written documents that need to be served to operators shall be served in accordance with the Provisions on Procedures for Administrative Penalties for Market Supervision and Administration. Article
78 These Provisions shall come into force on April 15, 2023. The Interim Provisions on the Examination of Concentration of Operators promulgated by Decree No.30 of the State Administration of Market Supervision and Administration on October 23, 2020 shall be abolished at the same time.
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