Recently, in order to prevent and stop trade associations from engaging in acts prohibited by the Anti-monopoly Law of the People's Republic of China, to give full play to the positive role of trade associations in promoting the healthy development of industry norms and maintaining market competition order, and to guide trade associations to strengthen the construction of anti-monopoly compliance. The General Administration of Market Supervision has drafted the Anti-monopoly Guidelines for Trade Associations (Draft for Opinions) , which is now open to the public for comments. Relevant units and individuals
are welcome to propose amendments and give feedback to the General Administration of Market Supervision by June 15, 2023. The public can put forward their opinions through the following ways and means.
1. Log on the website of the State Administration of Market Supervision (https://www.samr.gov.
) 2. Send the comments to the fldys@samr.gov by e-mail.
3. Mail the comments to: No.8, Sanlihe East Road, Xicheng District, Beijing. Department of Anti-monopoly Law Enforcement, General Administration of Market Supervision, Postal Code 100820. Please mark on the envelope the words "Anti-monopoly Guidelines for Trade Associations (Draft for Opinions) for Public Consultation". The above-mentioned document of the General Administration of
Market Supervision on May 15
, 2023 clearly points out that trade associations shall not organize operators with competitive relations in the industry to reach monopoly agreements prohibited by Article 17 of the Anti-monopoly Law. Including but not limited to the following acts:
(1) fixing or changing the prices of commodities or services (hereinafter referred to as commodities). Trade associations shall not set commodity prices for their members or restrict their independent pricing power in the name of price self-discipline, industry rectification and maintenance of market order, nor shall they organize operators of their own industries to fix or change price levels, price changes, profit levels or other fees such as discounts and handling fees. It is agreed to adopt the standard formula, algorithm, platform rules, etc. According to which the price is calculated.
(2) limiting the quantity of goods produced or sold. Trade associations shall not make decisions on the quantity of production or sales of commodities to their members, such as reducing production, stopping production, setting production quotas or proportions, limiting supply, stopping sales, etc., nor shall they organize the operators of the trade to limit the quantity of production of commodities by limiting production, fixing production, stopping production, etc. Limit the quantity of goods sold by limiting the quantity of goods put in.
(Three) dividing the sales market or the raw material procurement market. The trade association shall not organize the operators of the industry to divide the sales areas, sales targets, market shares, sales revenue, sales profits or the types, quantities and time of the commodities sold, nor shall it organize the operators of the industry to divide the procurement areas, suppliers, types, quantities and time of raw materials.
The Draft for Soliciting Opinions clarifies the situation in which organizations reach monopoly agreements. Trade associations are prohibited from organizing the operators of the industry to reach monopoly agreements through the following acts:
(1) formulating and issuing articles of association, rules, decisions, notices, opinions, standards, and self-discipline conventions of trade associations that exclude or restrict competition;
(2) To convene, organize and promote operators to reach agreements, resolutions, minutes and memorandums containing exclusion and restriction of competition in written and oral forms through meetings, e-mails, telephone calls, letters and instant messaging tools;
(3) To convene, organize and promote the concerted acts of business operators to eliminate or restrict competition through meetings, e-mails, telephone calls, letters, instant messaging tools, etc., although no agreement or decision has been concluded;
(4) The acts of other business operators to reach monopoly agreements.
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Article 2 Basic Concepts
The term "trade associations" as mentioned in this Guide refers to various associations, societies, chambers of commerce, federations, promotion associations and other social organizations composed of economic organizations and individuals in the same industry, which exercise the functions of industry service and self-discipline management.
Trade associations are mainly composed of operators with competitive relations, and may also include upstream and downstream operators, or operators with other business contacts. Article
3 Generally requires
trade associations to strengthen industry self-discipline, guide operators of the industry to compete according to law, operate in compliance with regulations, and maintain market competition order.
Trade associations shall not engage in acts of eliminating or restricting competition in violation of the provisions of the Anti-monopoly Law. Article
4 General Provisions
on the Prohibition of Organizing to Engage in Monopoly Agreements Organizing the operators of the industry to engage in monopoly agreements is the main manifestation of the violation of the Anti-monopoly Law by trade associations. Trade associations shall not, in violation of the provisions of Article 21 of the Anti-monopoly Law, organize operators of their own industries to engage in monopoly agreements. The term "engaging in" as mentioned in the
preceding paragraph includes the conclusion and implementation of monopoly agreements. Article
5 Form
of Monopoly Agreements Monopoly agreements refer to agreements, decisions or other concerted actions that exclude or restrict competition.
Agreements and decisions can be written, oral and other forms.
Other concerted acts refer to the acts in which the operators have not explicitly concluded an agreement or decision, but there is substantial coordination through other means, except for the parallel acts such as price following made by the operators concerned on the basis of independent expression of will. Article
6 Trade associations of horizontal monopoly agreements
shall not organize operators with competitive relations in their respective industries to reach monopoly agreements prohibited by Article 17 of the Anti-monopoly Law. Including but not limited to the following acts:
(1) fixing or changing the prices of commodities or services (hereinafter referred to as commodities). Trade associations shall not set commodity prices for their members or restrict their independent pricing power in the name of price self-discipline, industry rectification and maintenance of market order, nor shall they organize operators of their own industries to fix or change price levels, price changes, profit levels or other fees such as discounts and handling fees. It is agreed to adopt the standard formula, algorithm and platform rules for calculating the price.
(2) limiting the quantity of goods produced or sold. Trade associations shall not make decisions on the quantity of production or sales of commodities to their members, such as reducing production, stopping production, setting production quotas or proportions, limiting supply, stopping sales, etc., nor shall they organize operators of the industry to limit the quantity of production of commodities by limiting output, fixing output, stopping production, etc. Limit the quantity of goods sold by limiting the quantity of goods put in.
(Three) dividing the sales market or the raw material procurement market. The trade association shall not organize the operators of the industry to divide the sales areas, sales targets, market shares, sales revenue, sales profits or the types, quantities and time of the commodities sold, nor shall it organize the operators of the industry to divide the procurement areas, suppliers, types, quantities and time of raw materials.
(Four) restrict the purchase of new technologies and new equipment or restrict the development of new technologies and new products. Trade associations shall not organize operators in the industry to restrict the purchase, use, lease, investment, research and development of new technologies, new processes, new equipment and new products, or refuse to use new technologies, new processes, new equipment and new products.
(5) boycott of transactions. Trade associations shall not organize operators of their own industries to jointly refuse to supply or sell goods to specific operators, jointly refuse to purchase or sell goods of specific operators, or jointly restrict specific operators from trading with their competitive operators. Article
7 Vertical Monopoly Agreements
An industry association shall not organize the operators of the industry to reach a monopoly agreement prohibited by Article 18 of the Anti-monopoly Law with the counterpart of the transaction, including but not limited to the following acts:
(1) fixing the price of the goods resold to a third party. The trade association may not organize the operators of the trade to fix the price level, the range of price changes, the profit level or the discount, handling charges and other charges for the resale of goods to a third party;
(2) set the minimum price for the resale of goods to a third party.The trade association shall not organize the operators of the industry to limit the minimum price of the goods resold to a third party, or limit the minimum price of the goods resold to a third party by limiting the range of price changes, profit level or discounts, handling fees and other expenses.
For the agreements specified in the preceding paragraph, if the trade association or operator can prove that the agreement does not have the effect of eliminating or restricting competition, it shall not be prohibited. If
an operator can prove that its market share in the relevant market is lower than the standard prescribed by the Anti-monopoly Law Enforcement Agency of the State Council and meets other conditions prescribed by the Anti-monopoly Law Enforcement Agency of the State Council, it shall not be prohibited. Article
8 The trade association
is prohibited from organizing the operators of the trade to reach a monopoly agreement through the following acts:
(1) Formulating and issuing the articles of association, rules, decisions, notices, opinions, standards, etc. Of the trade association that contain the contents of eliminating or restricting competition; Self-discipline conventions, etc.;
(2) Convening, organizing and promoting the undertakings to reach agreements, resolutions, minutes, memorandums, etc. Containing the contents of eliminating or restricting competition in written or oral forms through meetings, e-mails, telephone calls, letters, instant messaging tools, etc.;
(3) To convene, organize and promote the concerted acts of business operators to eliminate or restrict competition through meetings, e-mails, telephone calls, letters, instant messaging tools, etc., although no agreement or decision has been concluded;
(4) The acts of other business operators to reach monopoly agreements. Article
9 Under the circumstances
of organizing the implementation of monopoly agreements, trade associations are prohibited from organizing the operators of the industry to implement monopoly agreements through the following acts:
(1) setting requirements for membership, confiscating deposits, setting liquidated damages, restricting the rights and interests of members, canceling membership, circulating a notice of criticism, Joint boycott, suspension of business activities and other disciplinary measures to force business operators to implement the monopoly agreement;
(2) take incentive measures such as linking the implementation of the monopoly agreement with the member award and evaluation first to guide business operators to implement the monopoly agreement;
(3) The trade association itself or through a third-party organization shall supervise and monitor the implementation of the monopoly agreement by the business operators;
(4) The trade association shall take such safeguard measures as setting up a platform, setting up a special class, and establishing a coordination mechanism to provide convenient conditions for the business operators to implement the monopoly agreement;
(Five) the implementation of monopoly agreements by other organizations and operators. Article
10 High-risk behavior
trade associations shall avoid engaging in, including but not limited to, the following acts that may provide convenient conditions for the operators of the industry to reach and implement monopoly agreements:
(1) Promoting the exchange of operators of the industry, To discuss or circulate competitively sensitive information;
(2) to publish guiding prices such as guided prices, benchmark prices, reference prices, recommended prices and forecast prices within the industry, or to formulate price calculation formulas for reference by operators in the industry;
(3) Publishing false or exaggerated market information such as cost trends, supply and demand conditions; The term "competition-sensitive information" as mentioned in the
preceding paragraph refers to information closely related to market competition, such as the cost, price, discount, quantity, quality, turnover, profit or profit margin of commodities, as well as the research and development, investment, production, marketing plan, customer list and future business strategy of operators. However, information that has been publicly disclosed or can be obtained through public channels is excluded. Article
11 Monopoly agreements exempt
trade associations from organizing monopoly agreements reached by operators in their own industries shall not be prohibited if they meet the circumstances and conditions stipulated in Article 20 of the Anti-monopoly Law.
Trade associations may provide guidance to the operators of the industry on whether the monopoly agreement meets the circumstances and conditions stipulated in Article 20 of the Anti-monopoly Law, and support the operators of the industry to apply for exemption to the anti-monopoly law enforcement agencies. Article
12 As
an operator of a trade association, when a trade association engages in commodity production, operation or provision of services and belongs to the operators specified in Article 15 of the Anti-monopoly Law, it shall not violate the provisions of the Anti-monopoly Law, engage in monopoly agreements, abuse its dominant market position or illegally implement concentration of operators. Article
13 Trade associations that abuse administrative power to exclude or restrict competition
and are authorized by laws and regulations to manage public affairs shall not violate the provisions of Chapter V of the Anti-monopoly Law. Abuse of administrative power to implement restricted transactions, hinder operators from entering relevant markets or implement unequal treatment to operators by signing cooperation agreements or memorandums, hinder the free circulation of commodities, exclude or restrict operators from participating in bidding and other business activities, restrict or force operators to set up branches, and force operators to engage in monopoly. To formulate regulations containing the content of excluding and restricting competition and other acts of excluding and restricting competition. Article
14 In
addition to the circumstances specified in Article 13 of these Guidelines, trade associations shall not issue regulations, measures, decisions, announcements, notices, opinions, letters or minutes of meetings on the basis of the requirements or entrustments of administrative organs, or through joint formulation with administrative organs. Sign cooperation agreements and memorandums to assist administrative organs in abusing administrative power to exclude and restrict competition. Article
15 When examining fair competition, trade associations authorized
by laws and regulations with the functions of managing public affairs formulate normative documents, other policy documents and specific policies and measures in the form of "one case, one discussion" concerning the economic activities of market participants, trade associations shall conduct a fair competition examination. Fair competition review shall be conducted in accordance with the requirements of the Anti-monopoly Law and relevant provisions to assess the impact on market competition and prevent exclusion and restriction of competition. Article
16 Self-discipline and compliance advocate that
trade associations should take advantage of the unique advantages of connecting the government and market participants, give full play to their functions of providing services, reflecting demands and standardizing behavior, and promote the healthy and sustainable development of industry norms.
Encourage and support industry associations to give full play to their self-discipline functions, strengthen their own anti-monopoly compliance construction, adopt industry rules, conventions and market autonomy rules, guide and help members to establish and improve anti-monopoly compliance management system, and identify and prevent monopoly risks as soon as possible. Article
17 Internal compliance management
An industry association shall strengthen its internal compliance management to avoid being controlled and used by its members to engage in acts that violate the Anti-monopoly Law and disrupt the order of market competition. Industry associations are encouraged to establish an effective anti-monopoly compliance management system, or to strengthen anti-monopoly compliance management in the existing compliance management system, including but not limited to the following measures:
(1) formulating an anti-monopoly compliance code of conduct;
(2) establishing an anti-monopoly compliance commitment mechanism;
(3) Setting up an anti-monopoly compliance department or personnel;
(4) Establishing an anti-monopoly compliance reward and punishment system; and
(5) Strengthening anti-monopoly compliance training. Article
18 The industry association of compliance risk identification and control
may identify the actual and potential anti-monopoly risks according to the provisions of laws, the characteristics of the industry and the market situation, and take corresponding preventive measures. Trade associations are
encouraged to examine whether they are suspected of violating the Anti-monopoly Law and relevant provisions when formulating and revising their articles of association, rules, decisions, notices, opinions, standards and self-discipline conventions. Those suspected of violating the above legal provisions shall not be released or adjusted to meet the requirements. Trade associations are
encouraged to establish an anti-monopoly compliance reporting mechanism to facilitate the reporting of suspected violations of the Anti-monopoly Law by their staff and members, and to promise to keep the information of the informants confidential and not to take any adverse measures against the informants.Article
19 Strengthen communication
and encourage trade associations to take the initiative to communicate with anti-monopoly law enforcement agencies, provide materials such as market competition and operators of the industry, and put forward suggestions for strengthening and improving anti-monopoly law enforcement.
Anti-monopoly law enforcement agencies and their staff shall have the obligation to keep confidential the business secrets, personal privacy and personal information they know in the course of law enforcement. Article
20 To strengthen compliance guidance
, trade associations may prevent and stop members from engaging in acts in violation of the Anti-monopoly Law in the following ways:
(1) to guide members to strengthen anti-monopoly compliance management;
(2) Conduct anti-monopoly compliance training for members, and remind members not to engage in monopolistic acts using the industry association as a platform or media;
(3) If a member is found to be suspected of engaging in illegal acts such as monopolistic agreements, it shall be stopped in a timely manner, and measures such as warning, notification and cancellation of membership shall be taken for education and punishment;
(4) Other measures to guide members to strengthen anti-monopoly compliance. In the event of the third circumstance in
the preceding paragraph, the trade association shall be encouraged to report to the anti-monopoly law enforcement agency in a timely manner, or guide its members to report to the anti-monopoly law enforcement agency as soon as possible the relevant information on the conclusion of the monopoly agreement and provide important evidence, and at the same time remind its members to stop the suspected illegal acts and cooperate with the investigation. The anti-monopoly law enforcement agency may mitigate or exempt from punishment according to law for operators who meet the conditions for leniency. Article
21 If a trade association cooperating with the investigation
finds that its own actions are suspected of violating the Anti-monopoly Law, or that it has been filed by the anti-monopoly law enforcement agency according to law or initiated the investigation procedure, it shall immediately stop the relevant actions, report the relevant information to the anti-monopoly law enforcement agency on its own initiative, and report the relevant information to the anti-monopoly law enforcement agency. And cooperate with the follow-up investigation of the anti-monopoly law enforcement agencies, and shall not refuse or obstruct the investigation of the anti-monopoly law enforcement agencies. Article
22 Where a
trade association and its members are suspected of violating the provisions of the Anti-monopoly Law, the anti-monopoly law enforcement agency may interview its legal representative or person in charge. The trade association and its members shall make rectification in accordance with the requirements of the anti-monopoly law enforcement agency, put forward specific measures to eliminate the consequences of the act and the time limit for performance, and submit a written report.
The anti-monopoly law enforcement agency may inform the competent department of the trade association and the registration and administration organ of social organizations of the interview, or invite the above-mentioned departments to jointly conduct the interview as required. Article
23 Legal Liability
If a trade association engages in or organizes the operators of the trade to engage in monopolistic acts, the trade association and the operators shall bear corresponding legal liabilities in accordance with the provisions of the Anti-monopoly Law. When determining the legal liabilities of trade associations and operators,
the anti-monopoly law enforcement agencies shall consider such factors as the nature, degree and duration of illegal acts, the elimination of the consequences of illegal acts, the role played by trade associations, the role played by operators, and the implementation of monopoly agreements. If a
trade association has the initiative to eliminate or mitigate the harmful consequences of illegal acts, cooperate with the anti-monopoly law enforcement agencies in investigating and dealing with monopolistic acts and perform meritorious deeds, the anti-monopoly law enforcement agencies shall give a lighter or mitigated punishment according to law. If a
trade association coerces its members to reach a monopoly agreement, prevents its members from withdrawing from the monopoly agreement, or has been subject to administrative penalties for illegal acts of the same nature within one year, the anti-monopoly law enforcement agency may impose heavier penalties according to law. Article
24 Where a credit disciplinary
trade association is subject to administrative penalties for violating the Anti-monopoly Law, the registration administration organ of social organizations may, in accordance with the provisions of Articles 11 and 15 of the Measures for the Administration of Credit Information of Social Organizations, list the trade association in a list of abnormal activities or serious violations of law and dishonesty, and impose a penalty on it. And announce it to the public.
For trade associations listed in the list of abnormal activities and serious violations of law and dishonesty due to violation of the Anti-monopoly Law, the anti-monopoly law enforcement agencies may take them as the key regulatory objects. Article
25 Strengthen communication and coordination between departments
and anti-monopoly law enforcement agencies, registration administration organs of social organizations and competent industry departments, promote closer links between competition supervision, market access and industry supervision, shift from case docking of supervision and law enforcement to deep-level system docking, improve the efficiency of supervision and law enforcement, and strengthen supervision. Form a synergistic regulatory force. Article
26 Validity
of the Guidelines These Guidelines only explain the acts of trade associations in violation of the Anti-monopoly Law and provide general guidance for the anti-monopoly compliance work of trade associations, which is not mandatory. Where there are other provisions in laws and regulations, such provisions shall prevail. Article
27 Interpretation
of the Guidelines These Guidelines shall be interpreted by the Anti-monopoly Committee of the State Council and shall be implemented as of the date of promulgation.
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